Larayna Manning v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: October 24, 2024
• Docket: 2023-SC-0144
• Status: Published

Opinion

RENDERED: OCTOBER 24, 2024 TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0144-MR

LARAYNA MANNING APPELLANT

ON APPEAL FROM CHRISTIAN CIRCUIT COURT V. HONORABLE ANDREW SELF, JUDGE NO. 20-CR-00635

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING

Larayna Manning (Manning) was convicted of one count of complicity to

murder and one count of complicity to first degree robbery. She was sentenced

to life imprisonment and now appeals her convictions and sentence as a matter

of right. Ky. Const. § 110. After review, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

In the early morning hours of October 13, 2020, Calvin Taylor’s

neighbor 1 Treesha Shelton was asleep in her bedroom with the window open.

Shelton and Taylor both lived on North Kentucky Avenue, a dead-end street, in

Hopkinsville. Shelton was startled awake by the sound of gunshots and briefly

1 Shelton’s home was across the street and three houses down from Taylor’s

home. attempted to find her glasses. Unable to find them, she looked out her

bedroom window. Shelton noticed that all the lights in Taylor’s house were on,

and, even without her glasses, she could see that a light-colored vehicle was

parked in the road front of Taylor’s home under a streetlight. After Shelton

heard a second round of gunfire, she saw two individuals run from Taylor’s

home; she could not identify their gender or race. Shelton called the police,

who responded to the scene soon after at around 3 a.m. When officers entered

Taylor’s home, they found him dead on his kitchen floor with duct tape over his

mouth and on his arm. He had been shot three times: twice in the abdomen

and once through the back of his head.

After Taylor’s body was discovered, Detective Michael Luckingham was

assigned as the lead detective. During his preliminary investigation, Det.

Luckingham found three pieces of footage from the night of the shooting on two

“city cams.” 2,3 The first video depicted a silver minivan pulling out of the

Cooperfield Apartment Complex located approximately one mile away from

Taylor’s home. A silver Saturn pulled out of the apartment complex shortly

after the minivan and proceeded in the same direction. The two vehicles went

south on North Elm Street and turned right onto Means Avenue in the general

direction of Taylor’s home. A second city cam at the intersection of West First

2 City cams are surveillance cameras at various intersections throughout

Hopkinsville that are maintained and operated by the city. 3 Each of the three city cam videos were played at trial, but they were not

provided in record before us and cannot be seen in the video record of the trial. This Court therefore relies on Det. Luckingham’s testimony regarding what they depicted.

2 Street and North Kentucky Avenue showed the minivan and the Saturn pulling

up to Taylor’s house at 2:11 a.m. on the night of the shooting. The minivan

parked in Taylor’s driveway and the Saturn parked in the street in front of the

home. The same camera later captured the Saturn leaving Taylor’s home,

followed shortly thereafter by the minivan.

Det. Luckingham also learned during his preliminary investigation that

Manning and her son Anthony Manning (Anthony) 4 were two individuals that

frequented Taylor’s home. Taylor and Manning were ostensibly friends, but

Taylor also trafficked crack cocaine, Manning’s drug of choice. It was

undisputed that Manning would buy crack cocaine from Taylor at his home

and often used his home as a safe place to smoke it. Det. Luckingham had

Manning come to the police station for questioning on the morning of the

shooting. During that interview she claimed that the last time she saw Taylor

was sometime around 1 a.m. but said nothing about going back to his home a

second time that night. She also admitted she had purchased and smoked

crack cocaine at Taylor’s home during that visit. However, she ended the

interview before he could glean any additional information from her.

A few hours later, Det. Luckingham went to Manning’s home to try to

speak with her again and noticed a silver minivan that appeared to be the same

vehicle captured on the city cam footage. Manning and Anthony lived with

Manning’s father, Watkins Manning (Watkins), who owned the minivan but

4 As Larayna and her son Anthony Manning are mentioned extensively

throughout this opinion, we refer to Anthony by his first name.

3 often allowed Anthony to use it. Det. Luckingham obtained Watkins’ consent

to search the minivan and nineteen grams of crack cocaine were found in the

minivan’s overhead sunglass compartment. The officers searched Manning’s

home later that day pursuant to a search warrant and found an additional five

grams of crack cocaine in a jewelry box in her bedroom.

An officer with the narcotics division of the Hopkinsville Police

Department, who was also a task force officer for the DEA 5, testified at trial

that street drugs were more expensive during the COVID pandemic, and that

the value of crack cocaine in particular ranged from around $100-$125 per

gram. Anthony told the police during an interview that he was certain the

crack cocaine found in the minivan came from Taylor’s home and that there

was “no way” Manning could have afforded to purchase it.

Sometime after the search of the minivan and home, Manning and

Anthony came to the police station to be interviewed a second time. The

officers again got nowhere with Manning, but Anthony provided an extensive

statement about what occurred the night Taylor was murdered. 6 Anthony told

them that he drove Manning to Taylor’s home in the minivan sometime earlier

in the evening. They then left and went to Lisa Robinson’s apartment in the

Cooperfield Apartment Complex. He and Manning went into Robinson’s

apartment, but they did not stay long. Robinson testified at trial that, although

5 Drug Enforcement Administration.

6 We acknowledge that Anthony’s trial testimony deviated in several significant

ways from his original statements to police and his subsequent Alford plea narrative. The deviations in his trial testimony are discussed in Section II(C) below.

4 she had known Manning for nearly ten years, Manning’s presence in her home

that night was odd: Robinson was no longer friends with Manning because

Manning had slept with Robinson’s boyfriend.

Anthony further told law enforcement that when he and Manning walked

out of Robinson’s apartment, the silver Saturn was already in the apartment

complex’s parking lot. Manning went over to the Saturn and spoke with its

occupants, a black male in the driver’s seat and a white male in the passenger

seat, while Anthony went to the minivan. After Manning spoke to the Saturn’s

occupants, she got in the minivan. The minivan and the Saturn attempted to

pull out at the same time, causing Anthony to stop. When he stopped,

Manning got out of the minivan and went over to the Saturn and spoke to the

occupants again. When she got back in the minivan, she told Anthony to take

her back to Taylor’s house. Anthony said he did not realize that the Saturn

followed them to Taylor’s house until they got there.

Anthony then told the officers that when the two vehicles got to Taylor’s

house, Anthony remained in the minivan while Manning and the two

unidentified men in the Saturn went to Taylor’s front door. Manning knocked,

and Taylor let the trio in willingly. Approximately ten minutes later, Anthony

heard the first round of gunshots followed soon after by a second round of

gunshots. 7 After the second round, Anthony saw the two men run from

Taylor’s home, get into the Saturn, and leave. Manning did not come out, so

7 A total of nine 9mm shell casings were recovered from Taylor’s home.

5 Anthony went in to find her. Anthony found Manning in the bathroom between

the living room and the kitchen with the bathroom door open. They then left

without calling for emergency services. When Manning left Taylor’s home, she

had her purse and a pink Nike backpack with her.

At some point after Anthony’s interview, Det. Luckingham interviewed

Manning a third time. During that interview she told them that she did not

remember going to Taylor’s house the first time. And, while she somewhat

remembered going to the Cooperfield Apartments, she did not remember

anything after that. Joyce Dean, who had been at Robinson’s apartment at the

same time as Manning and Anthony, testified that Manning did not appear to

be intoxicated that night.

Manning was arrested eight days after Taylor’s murder on October 21,

2020. On October 29, the police obtained a search warrant to search her home

a second time. The basis for the warrant were recorded jail phone calls

between Manning and Watkins in which she instructed him to hide her pink

Nike backpack. 8 When the officers executed the warrant, they found a purple

Crown Royal bag inside the backpack which contained, inter alia, several men’s

watches. Estella Washington, one of Taylor’s “very best friends” who cleaned

his home and was familiar with his belongings testified that one of the watches

found in the Crown Royal bag belonged to Taylor. She conceded on cross-

8 These recorded phone calls were not played at trial and are not in the record.

6 examination that she could not say with certainty that it was Taylor’s watch,

but it appeared to be one he had owned.

In addition, several pieces of evidence taken from Taylor’s home were

tested for DNA. Tyiesha Moore, a forensic biologist with the ATF, 9 conducted

that testing. In relevant part, Moore took several swabs from the piece of duct

tape found over Taylor’s mouth, the piece of duct tape found on Taylor’s arm, a

piece of duct tape found on the bathroom’s doorframe, and an empty duct tape

roll. Moore’s testing concluded that Manning’s DNA was not on the piece of

duct tape found over Taylor’s mouth. However, her DNA was on the inner ring

of the empty duct tape roll; two different areas of the piece of duct tape found

on Taylor’s arm; and two different areas of the duct tape found on the

bathroom’s doorframe, one of which was a possible bitemark. For each of

these findings, Moore concluded that “[t]he probability of an unrelated

individual in the population, who has not contributed DNA to this sample,

yielding this level of support, is less than 1 in one trillion.” Notwithstanding,

Moore acknowledged that two incidents happened during her testing. She

explained:

In this case there were two contamination events. One was the use of razor blades to cut the samples, those swabs that I mentioned earlier that I collected. So, for the range of time in which this case was conducted, razor blades that were unsterile were used. Since 2006 our lab has been using one time use razor blades to cut samples without any contamination issues. However, in 2021, an unknown [DNA] profile came up during our routine quality checks. And so at that point all cases that were conducted during that time frame in which these razor blades were used were evaluated to

9 Bureau of Alcohol, Tobacco, Firearms and Explosives.

7 determine if the razor blade profile had contaminated the case profile. And for this case in particular it was found that the razor blade contamination did not impact the results of this case.

The second event was a sample switch that occurred when I was processing nine samples of this case. How I detected that was that a profile appeared in my reagent blank. 10 In troubleshooting this I realized that a sample switch occurred. So, because of this none of those samples were used because the control was invalid and therefore all of the results were unreliable. I then went back to the original exhibits and resampled for those nine samples that were affected. The controls for those associated samples generated results that were expected and ensure the reliability of the results that I share with you today.

In other words, Moore determined that the contaminated batch of razor blades

had not affected the testing in this case, and she retested the items affected by

the contaminated reagent blank with a new, non-contaminated reagent blank.

Manning’s defense counsel did not deny that she was in Taylor’s home at

the time of his death. During opening statements, the defense seemed to

indicate that it would pursue a “wrong place wrong time” defense by asserting

that the only thing Manning was guilty of was being at Taylor’s house at the

time of his murder. During both opening statements and closing arguments,

the defense mainly focused on creating reasonable doubt by alleging that law

enforcement had zeroed in on Manning without bothering to find the two

unidentified men that were responsible for Taylor’s death and took shortcuts

10 “Reagent blanks are routinely processed with samples. Laboratories include reagent blanks in the extraction, quantitation, and amplification processes to aid in monitoring potential contamination of reagents and/or supplies.” STR Data Analysis and Interpretation for Forensic Analysts, Negative Control(s) & Reagent Blanks, https://nij.ojp.gov/nij-hosted-online-training-courses/str-data-analysis-and- interpretation-forensic-analysts/data-interpretation-allele-calls/step-1-internal-size- standards-and-allelic-ladders/negative-controls-reagent-blanks (last accessed Sept. 9, 2024).

8 during their investigation. In support of its contention, the defense highlighted

that the police never located the Saturn; never identified or located the two

unidentified men present at the time of the murder; never located Taylor’s

handgun, which he was known to always keep on the coffee table in the living

room; and never located Taylor’s cellphone even though it had “pinged”

somewhere within Hopkinsville. 11 The defense’s sole witness, Samantha

Spencer, focused solely on attacking the DNA evidence.

Spencer, a forensic consultant specializing in forensic biology and crime

scene reconstruction, concluded that Moore’s results were unreliable. Spencer

did not perform any DNA testing herself, but she reviewed the ATF’s case file,

ATF’s SOPs, 12 and Moore’s report. Spencer found issues with the same two

contamination events to which Moore testified, as well as two additional issues

with the positive controls used during testing and the chain of custody for four

of the items. Spencer acknowledged that Moore followed ATF protocols in

concluding that contamination from the razor blades was not present. Her

only issue regarding the razor blade contamination event was that she was not

provided with, nor did she request, the contaminating DNA profile itself so that

she could conduct her own comparison. Next, Spencer asserted that both the

reagent blank and four out of the five positive controls used in Moore’s testing

contained more than one DNA profile. She testified that, ideally, those items

11 Det. Luckingham testified that the cellphone ping showed that Taylor’s

cellphone was “within 2500 meters [about 1.6 miles] of 809 Bluebird Court” in Hopkinsville. 12 Standard operating procedures.

9 should contain only one easily identifiable DNA profile. During rebuttal, Moore

explained that both the reagent blank and the positive controls did have a

single source DNA profile. She elaborated that “based on ATF policy we leave

in what is known as stutter, those artifacts or biproducts of amplification in

the sample. So those additional peaks are attributed to stutter. It’s not

another individual present.”

Finally, Spencer concluded that there was a break in the chain of

custody for four items: the duct tape from Taylor’s mouth, the duct tape from

his arm, the duct tape found on the bathroom’s doorframe, and the empty duct

tape roll. She explained that a note within the case file stated that when Moore

resampled those items after discovering the reagent blank contamination, the

four items in question were left out on a bench in the lab covered with bench

paper. Spencer contended that this constituted a break in the chain of

custody. Moore testified on rebuttal that, according to ATF’s policies, the chain

of custody was not broken as the items remained in her custody in a secured

lab throughout the testing and retesting process.

Based on the foregoing evidence, Manning was convicted of one count

complicity to wanton murder and one count of complicity to first degree

robbery. She was sentenced to life imprisonment for complicity to murder and

twenty years for complicity to first degree robbery. She now appeals.

Additional facts are discussed below as necessary.

10 II. ANALYSIS

A. Right to a Speedy Trial

Manning first argues that she was denied her constitutional right to a

speedy trial. As noted, Taylor’s murder occurred on October 13, 2020, and

Manning was arrested on October 21, 2020. She was indicted nearly two

months later on December 18, 2020. For context, we note that Anthony was a

co-defendant in this case until sometime between August 24, 2021, and

September 22, 2021, at which time he entered an Alford 13 plea. We further

note that Manning remained in custody until her trial.

During the first two pretrial hearings in this case, on January 27, 2021,

and March 31, 2021, respectively, the trial court simply set later hearing dates

to allow both Manning’s and Anthony’s attorneys to review discovery in the

case, which Manning’s attorney had received on January 26, 2021. During the

third pretrial hearing on May 19, 2021, Manning’s defense attorney stated that

he and Anthony’s attorney were considering setting the case for felony

mediation, and the Commonwealth indicated it would be amenable to doing so.

However, when Anthony’s attorney sent a follow up email to the

Commonwealth on July 16, 2021, regarding mediation the Commonwealth

responded, “I have no interest in mediating this case. Unless your client is

interested in providing the names and testimony about others that were

involved, we just need to probably set this case for trial.”

13 See North Carolina v. Alford, 400 U.S. 25 (1970).

11 On the morning of the next status conference on July 21, 2021, nine

months after Manning’s arrest, she filed a motion for a speedy trial “pursuant

to the Sixth Amendment of the Constitution of the United Stated, Section 11 of

the Constitution of the Commonwealth of Kentucky, KRS 14 500.110, and RCr 15

9.02[.]” During the July 21 hearing, her attorney invoked KRS 500.110

specifically and requested that a trial date be set within 180 days. The video

record is then cut off but, based on later hearings, this Court discerns that a

trial date was set for October 4, 2021.

Two days after the July 21 hearing, the Commonwealth filed a “notice of

intent to proceed as capital case with aggravating circumstances and notice of

intent to seek the death penalty.” The notice stated that aggravating

circumstances 16 existed in the case that authorized the Commonwealth to seek

the death penalty, life without the possibility of parole, and/or life without the

possibility of parole for twenty-five years. Four days later, Manning’s attorney

filed a motion to dismiss the indictment for prosecutorial vindictiveness or, in

the alternative, to quash the Commonwealth’s notice of intent to proceed as a

capital case with aggravating circumstances as not timely filed.

After a brief status conference on August 4, 2021, the trial court

scheduled a full evidentiary hearing for August 24, 2021, to address the

14 Kentucky Revised Statute.

15 Kentucky Rule of Criminal Procedure.

16 The aggravating circumstances provided in the notice were that the murder

was committed during the commission of a first-degree robbery, and that the murder was committed for the purpose of receiving money or some other item of monetary value. KRS 532.025(2)(a)2.; KRS 532.025(2)(a)4.

12 competing motions. After the August 4 hearing, but prior to the August 24

hearing, the Commonwealth sent an email to Manning’s and Anthony’s

attorneys informing them that it no longer intended to seek the death penalty,

but it would still seek enhanced penalties. The email also informed them, for

the first time, that the DNA testing would not be complete in time for the

October 4 trial date.

During the August 24 hearing, Manning’s counsel explained that he

received the discovery in the case on January 26, 2021, and since that date no

additional discovery had been provided and no procedural activity had

occurred. Counsel therefore filed a motion for speedy trial after which the

Commonwealth gave notice, for the first time, that it intended to seek the death

penalty or enhanced penalties. Manning’s counsel asserted that, by filing that

motion, the Commonwealth was attempting to punish Manning for invoking

her right to a speedy trial. Defense counsel also noted that, after the speedy

trial motion was filed, the Commonwealth had provided additional discovery,

some of which was dated from January, March, and April 2021. Based on this,

as well as the July 16 email in which the Commonwealth abruptly changed

course regarding mediation, Manning’s counsel argued that the Commonwealth

was attempting to stall the case as long as possible to coerce Manning and

Anthony into identifying the two unknown men that were present at the time of

Taylor’s murder. The Commonwealth responded that it provided the

supplemental discovery as soon as it had received it and clarified that it did not

13 intend to seek the death penalty but requested leave from the court to seek

enhanced penalties.

While ruling on the motions the trial court noted, and the

Commonwealth conceded, that the Commonwealth agreed to the October 4,

2021, trial date during the July 21 hearing without making any mention of the

fact that the DNA evidence would be delayed or that it intended to seek

enhanced penalties. The defense asserted that it would be unable to proceed

with trial on October 4 if the court allowed the Commonwealth to seek

enhanced penalties, as enhanced penalties require a great deal of additional

preparation for the sentencing phase.

The trial court made an oral ruling to deny the defense’s motion to

dismiss the indictment and to grant the defense’s motion to quash. The court

reasoned that the defendants had invoked their right to a speedy trial, and that

when the October 4 trial date was set the Commonwealth had provided no

notice that it intended to seek enhanced penalties. The court agreed with the

defense’s contention that a case involving enhanced penalties could not be

ready by October 4, but it made no findings as to whether the Commonwealth

was being vindictive in seeking enhanced penalties or whether the

Commonwealth was intentionally attempting to stall the case to force Manning

and Anthony into cooperating with the investigation into the two unknown

males. Rather, the “sole finding” that the court made was “that the notice of

intent was not timely filed, and because the notice of intent was not timely

filed, for the court to allow the Commonwealth to proceed in that fashion

14 would. . . effectively deprive the defendants of their constitutional right to a fast

and speedy trial.” The court intended to proceed with trial on October 4, but

acknowledged a delay in receiving DNA testing results could affect that

intention. The court left open the possibility that the Commonwealth could

seek enhanced penalties if the October 4 date had to be continued.

By the next status conference on September 22, 2021, Anthony had

entered an Alford plea and was no longer a co-defendant in the case. Also,

during that hearing, Manning’s counsel informed the court that he had COVID

and would not be released from quarantine until October 1, 2021, three days

before the trial was set to begin. Nevertheless, counsel stated he did not want

a continuance and wanted to proceed with trial on October 4. The

Commonwealth stated that, in the event the trial was continued due to the

defense’s illness, it would not seek enhanced penalties. The trial court

continued the trial sua sponte as it believed that it subjected “both [defense

counsel] and Ms. Manning to challenging circumstances if we were to go to trial

on October 4.” The trial was rescheduled for December 7, 2021.

On December 6, 2021, the day before trial was supposed to commence,

the Commonwealth filed a motion to continue. During a hearing, the

Commonwealth explained that the ATF lab called him that morning and

informed him they found testable, female DNA on the duct tape used to bind

Taylor. The ATF further informed him a final report on the DNA testing could

be tentatively expected by February 2022. The defense objected to a

continuance, but the trial court granted the Commonwealth’s motion. The

15 court explained that it would be irresponsible to proceed with trial in the

absence of what could be significant DNA evidence. The defense informed the

court that if the Commonwealth’s DNA results came back as a match for

Manning, he would want to hire his own expert to review those results.

Without waiving his objection to continuing the trial, he suggested waiting to

see what the DNA results were before setting another trial that would inevitably

have to be continued. The court accordingly set a hearing date for February 2,

2022, to discuss the DNA results.

We note that during the December 6 hearing the trial court found, for

the first time, that KRS 500.110 did not grant Manning a statutory right to a

speedy trial, as she was not a state inmate against which a detainer had been

lodged. It did not acknowledge or discuss her constitutional right to a speedy

trial.

During the February 2, 2022, hearing the Commonwealth’s Attorney

informed the court that the ATF lab was behind schedule due to COVID issues

and was now expecting preliminary results by the end of the month. Defense

counsel again objected to a continuance based on Manning’s assertion of her

right to a speedy trial. The Commonwealth responded that “speedy trial has no

application in her matter, she’s not a state inmate,” and the trial court agreed

stating, “I agree with the Commonwealth. I don’t believe the speedy trial

request has any bearing in this particular situation.” Again, the court did not

acknowledge her constitutional right to a speedy trial. The trial court then set

16 a pretrial conference for April 6, 2022, and a tentative trial date for August 8,

2022.

During the April 6 hearing, the Commonwealth stated that the ATF lab’s

preliminary DNA results were in, but it still did not have a final report. The

Commonwealth represented that a final report should be completed by the end

of April, and the trial court set a pretrial conference for May 4, 2022. During

the May 4 hearing, the Commonwealth announced that the ATF lab had

recently identified all the hairs found as belonging to Taylor except for two

which it now wanted to test. The testing of those hairs would be included in

the ATF’s final report, but the final report would now be delayed for several

months. The trial court did not continue the case but directed the

Commonwealth to have the ATF lab complete its DNA analysis of everything

but the hairs and provide those results to defense counsel for review. This did

not occur.

At the next pretrial hearing on July 6, 2022, the parties informed the

court that the ATF lab had completed its DNA testing but had not yet issued a

final report. To remedy this, defense counsel prepared a draft order containing

an extensive list of items. He explained that, even in the absence of a final

report, his expert could be ready for trial by August 8 if she was provided with

the list of items in the order. The Commonwealth having no objection, the trial

court signed and entered the order and directed the ATF lab to provide the list

of requested items no later than July 15, 2022. Neither the defense nor its

expert was provided with those items by July 15. Defense counsel

17 consequently filed a motion to suppress all forensic evidence tested for DNA on

July 19, 2022.

During a hearing on July 25, 2022, the defense noted it received the ATF

lab’s final report well after office hours on July 22, a Friday. He further noted

that, because the Commonwealth’s expert did not provide the items requested

in the order entered on July 6, his expert did not have enough time to

adequately review the evidence prior to the August 8 trial date. The court was

at a loss as to why it had taken the ATF so long to prepare a report, but

nevertheless acknowledged that it had no authority over a federal agency’s lab.

The court agreed it would be patently unfair to force the defense to proceed

with trial in two weeks but denied its motion to suppress the DNA evidence.

The trial court said its goal was to find the truth and the DNA evidence in this

case was crucial to serving that purpose. Therefore, its only option was to

continue the trial. Defense counsel agreed that if the trial court would not

suppress the evidence, a continuance was their only option. The trial court

accordingly set the fifth and final trial date for January 9, 2023. Despite the

Commonwealth’s attempt to continue the case yet again on the morning of

January 9, the trial finally proceeded on that date.

Before reaching the merits of Manning’s argument, we must address one

small point of clarification regarding the comments made by the

Commonwealth and the trial court concerning KRS 500.110. “That statute

applies only when a defendant is incarcerated for one offense and a detainer

has been lodged against him to answer for another offense[]” and does not

18 apply when “a defendant is seeking a speedy trial of an offense for which he [or

she] is being held in pre-trial incarceration.” Gabow v. Commonwealth, 34

S.W.3d 63, 69 (Ky. 2000). Accordingly, we agree with the trial court’s

conclusion that KRS 500.110 did not apply in this case. However, the trial

court’s comments seemed to indicate that because KRS 500.110 did not apply,

the right to a speedy trial did not apply. To the extent this was the trial court’s

belief, it is incorrect. Manning’s motion for a speedy trial also asserted that

right under the United States Constitution, 17 the Constitution of Kentucky, 18

and RCr 9.02, 19 all of which apply even in the absence of the statutory right

embodied in KRS 500.110. With that said, we now address the merits.

This Court analyzes a defendant’s constitutional right to a speedy trial,

under both the Constitution of Kentucky and the United States Constitution,

by applying the four-factor test established by the United States Supreme

Court in Barker v. Wingo, 407 U.S. 514, 530-33 (1972). That precedent directs

us to balance: (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s responsibility to assert her right; and (4) the prejudice to the

defendant caused by the delay. Id. None of the foregoing factors are “either a

necessary or sufficient condition to the finding of a deprivation of the right of

speedy trial. . . these factors have no talismanic qualities; courts must still

17 U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial[.]”). 18 Ky. Const. § 11 (“In all criminal prosecutions the accused. . .shall have a

speedy public trial[.]”). 19 RCr 9.02 (“The trials of all persons in custody under arrest shall be held as

promptly as reasonably possible.”).

19 engage in a difficult and sensitive balancing process.” Id. at 533. If, upon

balancing these factors, this Court determines that a defendant’s right to a

speedy trial is violated, “dismissal of the indictment. . . is the only possible

remedy.” Id. at 522, accord Dunaway v. Commonwealth, 60 S.W.3d 563, 569

(Ky. 2001).

1) Length of Delay

A speedy trial analysis “begins by determining if the delay was

presumptively prejudicial to the defendant; for if it was not, the defendant’s

rights were not violated, and the inquiry ends.” See, e.g., Dunaway, 60 S.W.3d

at 569 (citing Gabow, 34 S.W.3d at 70). Whether a delay was presumptively

prejudicial “requires examining two elements: the charges and the length of the

delay.” Dunaway, 60 S.W.3d at 569. As the Barker Court explained, “the delay

that can be tolerated for an ordinary street crime is considerably less than for a

serious, complex conspiracy charge.” 407 U.S. at 531. Manning was charged

with complicity to murder and complicity to first degree robbery; these charges

are serious and of at least moderate complexity.

The second element, the length of delay, “is the time between the earlier

of the arrest or the indictment and the time the trial begins.” See, e.g.,

Dunaway, 60 S.W.3d at 569 (citing Dillingham v. United States, 423 U.S. 64

(1975)). Here, Manning was arrested on October 21, 2020, prior to her

indictment, and her trial began on January 9, 2023. This was a delay of two

years, two months, and twenty days. Based on precedent, this Court has no

difficulty in concluding that this delay was presumptively prejudicial. See, e.g.,

20 Bratcher v. Commonwealth, 151 S.W.3d 332, 344 (Ky. 2004) (holding an

eighteen-month delay in a murder case was presumptively prejudicial);

Dunaway, 60 S.W.3d at 569 (holding a thirteen and one-half month delay in a

first degree robbery case was presumptively prejudicial); Gabow, 34 S.W.3d at

70 (holding that a thirty-four-month delay in a murder case was presumptively

prejudicial).

2) Reason for Delay

Having concluded that the delay in Manning’s case was presumptively

prejudicial, we now address the reasons for the delay. The Barker Court

enumerated three categories of reasons for delay:

A deliberate attempt in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

407 U.S. at 530.

For the sake of simplicity, we have broken down the delays that occurred

here into four time periods. The first period of delay—between Manning’s

arrest on October 21, 2020, and when she filed her motion for a speedy trial on

July 21, 2021—can be attributed to the trial court giving defense counsel time

to review discovery and to the trial court giving the parties time to discuss

submitting the case to felony mediation. This Court holds these are valid

reasons and that the initial delay of nearly nine months was accordingly

justified. We acknowledge that Manning’s counsel asserted, and presented 21 some evidence to support, that the Commonwealth was intentionally stalling

the case during this period to pressure Manning into identifying the other two

men present at the time of Taylor’s death. If this were true, this period of delay

would certainly be held against the Commonwealth. But, although the trial

court was presented with evidence that the Commonwealth was stalling, it did

not make that finding. It would accordingly be inappropriate for this Court to

undertake the finding of fact required to reach that conclusion. Moreover,

Manning has not pursued that argument on appeal.

The second period of delay—between July 21, 2021, when Manning filed

her motion for a speedy trial and September 22, 2021, the first hearing

following the trial court’s ruling to quash the Commonwealth’s motion to seek

enhanced penalties—can be attributed to the Commonwealth intentionally

filing an untimely motion. During the July 21, 2021, hearing the

Commonwealth was on notice that Manning had invoked her right to a speedy

trial, as counsel had filed the motion that morning. Also, during that hearing,

the Commonwealth agreed to proceeding with trial on October 4, 2021. And

yet, two days after that hearing the Commonwealth filed notice, for the first

time, that it intended to seek the death penalty and enhanced penalties. The

trial court found that this notice was untimely filed, as it did not provide the

defense sufficient time to prepare for trial. We consequently hold that the

second period of delay, a total of two months and one day, was invalid and

should be weighed heavily against the Commonwealth.

22 The third period of delay—between September 22, 2021, and December

6, 2021—can be attributed to the trial court sua sponte continuing the October

4 trial due to defense counsel having COVID. The September 22 hearing was

the first following the trial court’s ruling to quash the Commonwealth’s

untimely notice to seek enhanced penalties. During that hearing, defense

counsel informed the court that he had COVID and would not be released from

quarantine until three days before the October 4 trial was to begin. Although

defense counsel objected to a continuance, the trial court ruled that failing to

continue the trial would be unfair to both counsel and Manning. We agree and

accordingly conclude that the third period of delay—two months, two weeks,

and 1 day—was for a valid reason.

The fourth and final period of delay—from December 6, 2021, to January

1, 2023—was also for a valid reason. The entirety of this period can be

attributed only to delays in the ATF’s lab completing its DNA testing and

submitting its final report. To be sure, the length of this delay—one year, three

weeks, and five days—is entirely unsatisfactory to this Court. And nothing in

the record explains why this evidence was sent to a federal agency’s lab rather

than a Kentucky State Police forensic lab. Nevertheless, the importance of DNA

evidence in modern criminal prosecutions cannot be overstated; the absence of

available DNA evidence is the equivalent to having a missing witness. We

accordingly cannot fault the trial court for ensuring this evidence was

available, despite the incredible length of delay it caused, and hold that the

delay associated with this period was valid.

23 On balance, we conclude that the bulk of the delays in this case were

attributable to valid reasons while a period of only two months and one day

were attributable directly to the Commonwealth. This factor must therefore be

weighed in favor of the Commonwealth.

3) The Defendant’s Assertion of the Right to a Speedy Trial

The third Barker factor to be considered is the defendant’s assertion to

his or her right to a speedy trial. 407 U.S. at 531. “While the defendant has a

right to a speedy trial regardless of whether he [or she] makes the demand,

assertion of the right is a factor to consider.” Dunaway, 60 S.W.3d at 571

(citing Barker, 407 U.S. at 531). And, a defendant’s “assertion of his [or her]

speedy trial right. . . is entitled to strong evidentiary weight in determining

whether the defendant is being deprived of the right.” Id. at 531-32. As

discussed above, Manning filed a motion for a speedy trial on July 21, 2021,

and thereafter, her counsel continually and staunchly asserted that right. We

therefore hold this factor weighs strongly in Manning’s favor.

4) Prejudice to the Defendant Caused by the Delay

The final Barker factor to be considered is prejudice to the defendant. Id.

at 532. The Barker Court identified three “interests of defendant’s which the

speedy trial right was designed to protect. . . (i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to

limit the possibility that the defense will be impaired.” Id. Of these, the Barker

Court held that “the most serious is the last, because the inability of a

defendant adequate to prepare his case skew the fairness of the entire system.”

24 Id. We further note that, “[w]hile a long delay creates ‘presumptive prejudice’

sufficient to compel a full Barker inquiry, it does not necessarily prove that the

defendant suffered actual prejudice.” Goncalves v. Commonwealth, 404 S.W.3d

180, 202 (Ky. 2013) (citing Bratcher v. Commonwealth, 151 S.W.3d, 345 (Ky.

2004)).

The only prejudice Manning asserts before this Court is that during her

two-year period of pretrial incarceration, her mother was left to take care of her

quadriplegic brother and two grandchildren. Manning asserts that knowing

that her mother was left to shoulder that burden alone caused her to suffer an

“unusual anxiety which extends beyond that which is inevitable in a criminal

case.” Stacy v. Commonwealth, 396 S.W.3d 787, 799 (Ky. 2013) (quoting Smith

v. Commonwealth, 361 S.W.3d 908, 918 (Ky. 2012)). We cannot dispute that

these circumstances, if true, likely did cause her a great deal of anxiety.

However, Manning has not provided a “affirmative showing” of these

circumstances, Smith, 361 S.W.3d at 918, nor has she asserted that her ability

to present a defense was somehow hindered by the lengthy pretrial delay in

this case. We accordingly cannot weigh this factor in her favor.

On balance, while the length of delay in this case was extensive, the

majority of the delay can be attributed to valid reasons. And, while Manning

consistently asserted her right to a speedy trial, we hold her assertion of

prejudice was insufficient. We accordingly hold that her constitutional right to

a speedy trial was not violated.

25 B. Prior Home Invasion Evidence

Manning’s next assertions of error concern evidence of a prior home

invasion, robbery, and assault with a deadly weapon that Manning and

Anthony were charged with six years before Taylor was murdered. On

November 29, 2021, the Commonwealth electronically filed (eFiled) a notice of

intent to present KRE 404(b) evidence. The notice stated:

[T]he Commonwealth intends to provide evidence that the Defendant, on October 16, 2014, engaged in a home invasion, robbery and assault with a deadly weapon, along with other co- defendants, including her son, Anthony Manning. This evidence is to show that the conduct she engaged in during the case at bar, shows preparation, plan, knowledge, and the absence of mistake or accident.

The evidence will be in the form of certified copies of her conviction in Trigg Circuit Court Indictment No. 15-CR-00016, and possibly through the testimony of Anthony Manning. This evidence should be no surprise to the Defendant since this is a prior conviction, for very similar conduct. Counsel for the Commonwealth also called the Defendant’s Attorney to discuss the filing of this Notice this same date, prior to the filing of the Notice.

WHEREFORE, the Commonwealth gives notice as required by KRE 404(c).

Manning’s defense counsel did not file a motion in limine in response to the

Commonwealth’s KRE 404(c) notice, and no pretrial hearing was held to

address the evidence’s admissibility. At trial, the Commonwealth mentioned

this evidence for the first time during opening statement. As it was recounting

what occurred after Taylor’s murder, it said:

So [Anthony] goes in the house. He sees Manning sitting in the bathroom floor and she says, “Is he dead?” And he says, “C’mon we’ve got to get out of here.” Why? Because Anthony Manning and his mother have done something like this similar before. In Trigg County, a home invasion that they’ve been convicted of. 26 Defense counsel objected to this statement, stating, “I’m not sure where [the

Commonwealth] is going with this, but there has been no 404 notice filed in

regards to any sort of prior bad act in Trigg County or anywhere else in this

case.” The Commonwealth responded that it filed notice on November 29,

2021, and showed the trial court a copy of the notice it had previously eFiled.

After reviewing the Commonwealth’s copy, the trial court handed it to defense

counsel. The court then looked through its own record of the filings and

appeared to locate the Commonwealth’s notice in the record. Upon locating it,

the trial court told defense counsel, “It was filed on November 29, 2021,” and

overruled its objection. Defense counsel did not pursue the issue further or

raise an objection regarding the admissibility of the prior bad act evidence. The

Commonwealth resumed opening statement and said, “So like I said, this isn’t

the first time they’ve done this” and moved on to a different subject.

The only other time the prior home invasion was discussed was during

Anthony’s direct examination by the Commonwealth. During that questioning,

the following exchange occurred:

CW: 20 Did you ever have a reason to think you shouldn’t hang out with your mom?

AM: 21 Due to her drug use.

CW: When you got in trouble over in Trigg County, was that whole thing your idea or your mom’s idea?

AM: Idea for what?

20 Commonwealth.

21 Anthony Manning.

27 CW: The home invasion robbery that happened in Trigg County.

AM: Nobody home invaded.

CW: When you did the robbery in Trigg County.

AM: I didn’t commit a robbery in Trigg County.

CW: You and your mom didn’t?

AM: No sir.

CW: You never got charged with it?

AM: I got charged with it.

CW: Okay, you pled to a lesser offense?

AM: Yes sir.

CW: Whose idea was it to commit that crime?

AM: It was never intended for a crime to be committed.

CW: It just kind of happened.

AM: It was alleged.

CW: It was alleged. But you entered a guilty plea to that?

Defense counsel did not object to this line of questioning.

Manning raises three arguments in relation to the foregoing: (1) that the

Commonwealth failed to provide sufficient notice under KRE 22 404(c) that it

intended to introduce prior bad acts evidence; (2) that evidence of the prior

home invasion was inadmissible under KRE 404(b); and (3) the

22 Kentucky Rule of Evidence.

28 Commonwealth’s questioning of Anthony regarding the incident constituted

improper impeachment. As Manning’s counsel only objected to a lack of KRE

404(c) notice and did not challenge the Commonwealth’s questioning of

Anthony concerning the prior home invasion pursuant to KRE 404(b)

(“Character evidence and evidence of other crimes”) or KRE 609 (“Impeachment

by evidence of conviction of crime”) we conclude that the former allegation of

error is preserved while the latter two are not. This Court will accordingly

review the trial court’s ruling on the alleged lack of KRE 404(c) notice for abuse

of discretion and will review the assertion that the prior home invasion

evidence was improper under KRE 404(b) and that the Commonwealth’s

questioning constituted improper impeachment under KRE 609 for palpable

error. 23

1. KRE 404(c) Notice

Manning first alleges that the Commonwealth failed to provide adequate

notice pursuant to KRE 404(c) of its intent to introduce evidence of a prior bad

act. As noted, we review this issue for abuse of discretion and will accordingly

affirm the trial court’s ruling that proper notice was provided unless that ruling

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

23 Manning argues that her counsel’s objection to the prior bad act evidence on

KRE 404(c) grounds was sufficient to preserve the argument that the evidence was improperly admitted under KRE 404(b); an argument we reject. Cf. Mayo v. Commonwealth, 322 S.W.3d 41, 51 (Ky. 2010) (demonstrating that a challenge based on a lack of notice under KRE 404(c), and a challenge based on the admissibility of evidence under KRE 404(b) are treated as distinct issues for the purposes of determining preservation). In the alternative, Manning requested review for palpable error pursuant to RCr 10.26.

29 principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). As we

have also noted, the Commonwealth eFiled its notice of intent to introduce

prior bad acts evidence. During defense counsel’s first appearance before the

trial court on Manning’s behalf the court informed him that all documents were

to be eFiled, and defense counsel eFiled at least three documents 24 before the

Commonwealth eFiled the KRE 404(c) notice at issue herein. The

Commonwealth’s KRE 404(c) notice is included in the record before this Court,

which we presume is the same record in which the trial court found the notice

during the bench conference following defense counsel’s objection. All

documents that are eFiled in the Commonwealth contain a “stamp line,” for

lack of a better term, indicating the case number, the date the document was

filed, the name of the circuit court clerk, and the county the circuit clerk

serves. In this case, the notice filed by the Commonwealth contains such a

stamp line which provides, in relevant part, that the notice was filed on

November 29, 2021.

In criminal cases, KRE 404(c) mandates that the Commonwealth “shall

give reasonable pretrial notice to the defendant of its intention to offer [prior

bad acts] evidence.” The purpose of this evidentiary rule is “to provide the

accused with an opportunity to challenge the admissibility of [prior bad act]

evidence through a motion in limine and to deal with reliability and prejudice

24 Those documents included defense counsel’s entry of appearance as well as

the motion for speedy trial and motion to dismiss the indictment for prosecutorial vindictiveness discussed in Section II(A) of this opinion.

30 problems at trial.” See, e.g., Walker v. Commonwealth, 52 S.W.3d 533, 538

(Ky. 2001) (quoting Tamme v. Commonwealth, 973 S.W.2d 13, 31 (Ky. 1998)).

“Whether reasonable pre-trial notice has been given is decided on a case-by-

case basis.” Walker, 52 S.W.3d at 538.

Ordinarily, the filing of a notice such as the one filed by the

Commonwealth in this case would be deemed sufficient KRE 404(c) notice.

However, the wrinkle in this case that warrants closer inspection is that,

despite the fact that the notice was undisputedly e-filed into the record,

Manning asserts that there is no indication that her counsel received that

notice. Specifically, she asserts that because the certificate of service on the

notice does not indicate it was served on her attorney, because the notice was

never mentioned by the trial court or the Commonwealth in any of numerous

pretrial hearings in this case, and because of defense counsel’s “obvious

surprise” during opening statement, this Court should deem the

Commonwealth’s notice insufficient. We disagree.

The rules that govern eFiling are now known as “Administrative Rules of

Practice and Procedure for the Kentucky Court of Justice Electronic Filing” or

the “eFiling rules” for short. KY ST ADMIN E-FILING AP E-Filing, Sec. 1. In

November 2021 when the notice at issue in this case was filed, the eFiling rules

were still in their “pilot project” phase. The eFiling rules have gone through

several iterations following their fledgling state, with the latest of these changes

going into effect in June of this year. As there is no indication that any

changes were to have a retroactive effect, we will reference and apply the

31 versions of the eFiling rules that were in effect as of November 2021 when the

Commonwealth’s notice was filed. See KRS 446.080 (“No statute shall be

construed to be retroactive, unless expressly so declared.”). 25 At that time,

Section 12 of the eFiling rules 26 stated:

(1) Notice of Electronic Filing. Upon the electronic filing of a document, the court's eFiling system will automatically generate and send a Notice of Electronic Filing (NEF) to all eFilers associated with that case, along with a hyperlink to the electronic document. Transmission of the NEF with a hyperlink to the electronic document constitutes service of the filed document under CR 5. No other service on those parties is required.

see also KY ST ADMIN E-FILING AP E-Filing, Sec. 2(10) (amended 2022, 2024)

(defining “electronic service” as “the electronic transmission of documents to a

party via the court's eFiling system. . . Electronic service of documents is

sufficient to provide service in accordance with the Kentucky Rules of

Procedure; no other service is required.”).

Accordingly, when the Commonwealth eFiled its KRE 404(c) notice in this

case, an NEF and a hyperlink to the notice would have been sent to all “eFilers”

associated with the case, and the Commonwealth was not required to provide

further service. The question, then, is whether Manning’s counsel was an

“eFiler” associated with the case when the Commonwealth filed the notice. In

2021, Section 8 of the eFiling rules provided in relevant part that “[i]n order to

25 We acknowledge that the eFiling rules are just that, rules, and are not

“statutes” as such. However, the rules are housed within the Kentucky Revised Statutes along with KRS 446.080. We therefore conclude it is appropriate to apply the “retroactivity rule” to the eFiling rules. 26 Currently codified as Section 13.

32 become an eFiler in a supported action, the eFiler must electronically file an

Entry of Appearance or any other supported document in that case, or the

eFiler may use a supported feature for the purpose of opting into cases.” KY ST

ADMIN E-FILING AP E-Filing, Sec. 8(1) (amended 2022, 2023, 2024). On

February 3, 2021, nine months before the Commonwealth filed its KRE 404(c)

notice, Manning’s counsel eFiled his entry of appearance. We therefore

conclude that Manning’s counsel was an eFiler in the case at the time the

Commonwealth’s prior bad act notice was filed and highlight that she has not

argued otherwise on appeal. Because of this, the KRE 404(c) notice was

available for defense counsel’s review, and his failure to do so cannot be held

against the Commonwealth. This Court further recognizes that Manning has

never disputed that the document was available within the eFiling record.

We agree with Manning that the certificate of service on the

Commonwealth’s KRE 404(c) notice was insufficient under the eFiling rules in

that it did not “show parties who received conventional service and parties who

received electronic service.” KY ST ADMIN E-FILING AP E-Filing, Sec. 12(5)

(currently codified as Sec. 13(6)). Nevertheless, the purpose behind KRE 404(c)

is to give defense counsel the ability to challenge any KRE 404(b) evidence that

the Commonwealth seeks to introduce. With that purpose in mind, the

Commonwealth’s notice, deficient certificate of service or no, was available in

the record for the defense to review and challenge for over a year before trial

commenced in this case. Moreover, nothing in the certificate of service rule

states that a failure to adhere to it will render service on the associated eFilers

33 in the case void. We therefore cannot hold that the deficient certificate of

service should serve to invalidate the Commonwealth’s notice in toto and hold

that the trial court did not abuse its discretion in finding that the

Commonwealth provided reasonable KRE 404(c) notice.

2. Admissibility of KRE 404(b) Evidence

As previously discussed, Manning’s argument that evidence of the Trigg

County home invasion and robbery was improperly admitted under KRE 404(b)

is unpreserved. We will accordingly review for palpable error under RCr 10.26.

“Under this rule, 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).

The evidence rule at issue, KRE 404(b), directs that “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity therewith.” However, such evidence may be

admissible “if offered for some other purpose, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident[.]” 27 KRE 404(b)(1). Due to the inherent prejudicial nature

of this kind of evidence, KRE 404(b) has always been interpreted as being

27 KRE 404(b)(2) provides another exception to the general exclusionary rule if

the prior bad act evidence offered is “inextricably intertwined” with the Commonwealth’s evidence. That exception has no application here.

34 exclusionary in nature, and trial courts are expected to “apply the rule

cautiously, with an eye towards eliminating evidence which is relevant only as

proof of an accused’s propensity to commit a certain type of crime.” Bell v.

Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). To aid in this often difficult

task, this Court established the routinely applied Bell test, which addresses

three separate inquiries into the proffered evidence: its relevance, its

probativeness, and its prejudice to the defendant compared to its probative

value. Bell, 875 S.W.2d at 889-90.

In this case, the Commonwealth’s KRE 404(c) notice argued that the

evidence of the prior home invasion was admissible to show Manning’s

“preparation, plan, knowledge, and the absence of mistake or absence.” But,

because there was no challenge to this proffered evidence by the defense, it is

difficult to discern precisely which of those exceptions the Commonwealth

would have argued under in support of the evidence’s admission and, likewise,

whether the trial court would have ruled that the evidence was admissible and

on what grounds. Before this Court, the Commonwealth asserts that the

evidence was admissible to prove Manning’s intent to commit the crimes

alleged in this case. Rather than engaging in an analysis of this evidence’s

admissibility under the Bell test, we hold that even assuming the evidence’s

admission was improper under KRE 404(b), the error was not palpable.

It was undisputed that Manning was present in Taylor’s home at the time

of his murder, and although Anthony’s trial testimony differed from his original

statements to police and the statement provided in his Alford plea as discussed

35 below, evidence was presented that Anthony originally told police that Manning

spoke to the unknown occupants of the Saturn twice before leaving the

apartment complex. Two city cams then captured the Saturn following

Manning and Anthony from the Cooperfield Apartment Complex to Taylor’s

home immediately preceding his death. And, on the morning of Taylor’s

murder, a large amount of crack cocaine was found in the minivan in which

Manning and Anthony left Taylor’s home following the shooting. Manning was

known to frequently purchase crack cocaine from Taylor, and Anthony stated

that he was sure that crack cocaine came from Taylor’s house and that

Manning would have been unable to purchase an amount that large. Perhaps

most damning, Manning’s DNA was found on a piece of duct tape recovered

from Taylor’s arm, a piece of duct tape recovered from the bathroom doorframe

in Taylor’s home, and on the inner ring of the empty roll of duct tape found in

Taylor’s home. This body of evidence demonstrated that Manning was not

simply in the wrong place at the wrong time, but that she “solicited, counseled,

commanded, or engaged in a conspiracy” 28 with the unknown men to effect

Taylor’s murder and robbery.

Based on the foregoing, we hold that there is not a substantial possibility

that the outcome of Manning’s trial would have been different absent the

admission of the prior bad act evidence.

28 This was the language used in the jury instructions for the counts of

complicity to first degree murder and complicity to first degree robbery in this case. This language tracks the definition of complicity under KRS 502.020(1)(a) and (b).

36 3. Impeachment Pursuant to KRE 609

Manning next asserts an argument unrelated to the application of either

KRE 404(c) or (b): that the Commonwealth’s examination of Anthony

concerning the Trigg County home invasion and robbery constituted improper

impeachment under KRE 609. As previously discussed, because this error was

unpreserved, we review for palpable error. KRE 609 provides in relevant part:

For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction.

KRE 609(a). By its express terms, KRE 609 “limits the use for impeachment

purposes of a prior felony conviction to the fact of the conviction and expressly

disallows disclosure ‘of the crime upon which the conviction was based. .

.unless the witness has denied the existence of the conviction.’” McPherson v.

Commonwealth, 360 S.W.3d 207, 212-23 (Ky. 2012). Accordingly, to the extent

the Commonwealth pursued the line of questioning at issue for impeachment

purposes, it should have first asked Anthony if he had ever been convicted of a

felony. If Anthony responded “yes,” the Commonwealth had to cease its

questioning. The only eventuality that would have given the Commonwealth

the ability to question Anthony about the specifics of the conviction, i.e., that it

was for a home invasion and robbery, was if Anthony denied the conviction.

Instead, the Commonwealth began discussing the crimes upon which the

37 conviction was based before it clarified to Anthony that it was referencing his

Trigg County convictions. We therefore hold that the Commonwealth’s

questioning was improper under KRE 609(a). Nevertheless, for the same

reasons we outlined in Section II(B)(2) of this opinion, we hold that there is not

a substantial possibility that the outcome of Manning’s trial would have been

different absent the Commonwealth’s improper impeachment of Anthony.

C. Evidence of Anthony’s Alford Plea

For her third assertion of error, Manning argues that the Commonwealth

impermissibly used evidence of Anthony’s Alford plea as substantive evidence

of her guilt. The Commonwealth argues in response that it properly used

Anthony’s Alford plea to impeach his prior inconsistent statements. Manning

acknowledges that this issue is unpreserved but requests review for palpable

error pursuant to RCr 10.26. We reiterate that under this standard we must

affirm unless upon consideration of the whole case a substantial probability

exists that the outcome would have been different absent the admission of the

challenged evidence. Martin, 207 S.W.3d at 3. Upon review, we conclude that

the Commonwealth’s initial introduction of the narrative statement in

Anthony’s plea was properly admitted to impeach his prior inconsistent

statement, but further hold that the Commonwealth then improperly used

Anthony’s plea as substantive evidence of Manning’s guilt. However, at

bottom, we hold that the Commonwealth’s improper use of Anthony’s plea was

not palpable error.

38 In the seminal case of Parido v. Commonwealth this Court, then recently

formed, reenforced the rule established by its predecessor that it is usually

“improper to show that a co-indictee has already been convicted under the

indictment.” 547 S.W.2d 125, 127 (Ky. 1977) (quoting Martin v.

Commonwealth, 477 S.W.2d 506 (1972)). And, if such evidence is introduced

for a permissible purpose, “the court should tell the jury that it is only to be

considered by them on the credibility of the witness.” Parido, 547 S.W.2d at

127 (quoting Webster v. Commonwealth, 3 S.W.2d 754 (Ky. 1928)). Parido

further held that when the Commonwealth uses a co-defendant’s guilty plea as

substantive evidence of the defendant’s guilt it is “highly prejudicial to [the

defendant’s] substantial rights” and can necessitate reversal. Parido, 547

S.W.2d at 126; see also Tipton v. Commonwealth, 640 S.W.2d 818, 820 (Ky.

1982) (holding “[t]o make such a reference and to blatantly use the conviction

as substantive evidence of the guilt of the indictee now on trial is improper[.]”).

In the intervening years, this Court recognized that there are certain

circumstances in which the introduction of evidence concerning a co-

defendant’s guilty plea is permissible. For example, the Court in Gaines v.

Commonwealth held that the Commonwealth is permitted to cross-examine a

co-defendant concerning his or her guilty plea if the defendant “opens the door”

to that evidence. 13 S.W.3d 923, 924-25 (Ky. 2000); see also Mayse v.

Commonwealth, 422 S.W.3d 223, 227 (Ky. 2013). This Court has also held

that if a defendant does not object to the introduction of evidence concerning a

co-defendant’s guilty plea and it is apparent from the record that the

39 defendant’s failure to do so was part of his or her trial strategy, no error

occurs. King v. Commonwealth, 276 S.W.3d 270, 277 (Ky. 2009); St. Clair v.

Commonwealth, 140 S.W.3d 510, 544 (Ky. 2004); Tamme, 973 S.W.2d at 32-

33. Finally, in Porter v. Commonwealth, this Court, citing Tipton, held that “[a]

guilty plea is admissible pursuant to KRE 613, which permits impeachment of

a witness by his prior inconsistent statements provided those statements are

inconsistent with testimony given by the pleader at an earlier proceeding.” 892

S.W.2d 594, 597 (Ky. 1995) (evidence introduced was the entire video record of

witness’ guilty plea proceedings).

In this case, the Commonwealth first mentioned Anthony’s Alford plea

during opening statements. It said:

I anticipate Anthony is going to come in here to testify and try and flip the script, try and save his momma. But, when he entered his guilty plea to facilitation, that is driving her there, his guilty plea said, under oath, the following facts. He signed it, he entered it as part of his guilty plea. When he testifies, you’ll see that document most likely.

Clearly, the Commonwealth made this statement in anticipation that Anthony’s

trial testimony would differ from the facts he swore to when he entered his

Alford plea. But, although “opening and closing arguments are not evidence

and prosecutors are given considerable leeway during both[,]” Mayse, 422

S.W.3d at 227, we must stress that it would have been better practice for the

Commonwealth to refrain from mentioning Anthony’s plea until circumstances

allowing its discussion—his inconsistent trial testimony—presented itself.

Moreover, although opening statements are not evidence, the

40 Commonwealth’s statement that “[Anthony] entered his guilty plea to

facilitation, that is driving [Manning] there” was clearly an attempt by the

Commonwealth to use Anthony’s plea to support its contention that Manning

was guilty and was therefore improper. Cf. Mayse, 422 S.W.3d at 227-28

(noting that the Commonwealth’s closing argument “[was] not a blatant use of

a co-indictee’s conviction as substantive evidence of [the defendant’s] guilt[,]”

and that its holding “[was] not an invitation for prosecutions to liberally

discuss a co-indictee’s conviction for any purpose other than credibility. . . of

that witness.”).

Later, the Commonwealth called Anthony as a witness. During his direct

examination, he provided testimony that did in fact deviate in several material

ways from his original statements to police, which had been memorialized in

the narrative section of his Alford plea. Specifically, Anthony testified that after

he and Manning walked out of Robinson’s apartment and into the parking lot

of the Cooperfield Apartment Complex, he went straight to the minivan while

Manning “veered off” somewhere else. He claimed he did not see where she

went and did not see her speaking to the occupants of the Saturn. He further

testified that once she got in the minivan she did not get out and speak to the

occupants of the Saturn for a second time. Anthony maintained that when he

and Manning got to Taylor’s house, she entered first, and the two occupants of

the Saturn entered the home after Manning was already inside. Finally, he

asserted that when he went into Taylor’s home to find Manning after the two

unidentified men had fled, he found her in the bathroom, but the bathroom

41 door was shut rather than open. After Anthony provided this testimony, the

following exchange occurred:

CW: Now, you entered a guilty plea, correct?

CW: Huh?

CW: Okay, let me show you this. [CW shows him his plea document]. Is that a document you signed and entered?

CW: And it says what?

AM: Guilty plea pursuant to North Carolina v. Alford, it’s an Alford plea.

CW: Which is a guilty plea, okay? Right where it says, read number five.

AM: “The defendant hereby states under oath at the time of the guilty plea that he drove Manning to the residence of Calvin Taylor and picked her up and took her to an apartment complex, where she later met two unknown individuals. Defendant drove Manning to Calvin Taylor’s residence where he waited outside [in] the van. Two unknown individuals followed the defendant to Calvin Taylor’s residence. The defendant observed Manning knock on Taylor’s door and when opened two unknown individuals entered Taylor’s residence along with Manning. While these three subjects were in Taylor’s residence the defendant heard multiple gunshots. He witnessed the two unknown individuals exit Calvin Taylor’s residence carrying a Crown Royal bag that came from inside the residence. The defendant then entered Taylor’s residence to get Manning since she did not come out. He saw Calvin Taylor lying in the kitchen floor with duct tape on his hands and his mouth, deceased from having been shot. The defendant located Manning sitting in the bathroom between the living room and the kitchen with the bathroom door wide open. He then got Manning and left Calvin Taylor’s residence and went to their home on Country Club Lane, all at the direction of Manning.”

42 CW: You swore that under oath at the time you entered your guilty plea, correct?

AM: Yes, sir.

We hold that no error occurred during the foregoing exchange. Anthony’s trial

testimony differed from the narrative statement provided in his plea. In

accordance with Porter, the Commonwealth was permitted to introduce the

sworn statements he made in his plea to impeach his prior inconsistent

statement.

After the Commonwealth completed its direct examination, Manning’s

counsel began its cross-examination by eliciting from Anthony that he did not

write out the narrative portion of his plea and did not know who did. Anthony

then testified again to several facts that conflicted with the narrative portion of

his plea, specifically: that he never saw Manning talking to anyone in the

Saturn before they left the apartment complex, that he did not notice that the

Saturn followed them from the apartment complex until they got to Taylor’s

house, and that Manning and the two unidentified men entered Taylor’s home

at different times. During the Commonwealth’s subsequent re-direct

examination, it attempted to attack the defense’s implication that Anthony did

not know what was in his plea agreement when he signed it:

CW: Now, when you did your plea, you sat down with me and we did an interview with you and your attorney, right?

AM: Correct.

CW: We went through all the details, correct?

43 CW: And that’s where all that language came from that you signed because you read it and signed under oath that it was the truth when you signed it, correct?

CW: And that said your mom had met two guys, two people, right?

AM: That’s what the paper states, yes sir.

CW: And that’s what you testified was the truth, correct?

CW: But now you’ve met with [defense counsel] multiple times and now you testify to these people here that your mom never met anybody, your mom never went to a car, your mom never talked to anybody. True?

AM: True.

When defense counsel conducted re-cross examination shortly thereafter, he

had Anthony clarify that he had never told Anthony what to say during his trial

testimony other than to tell the truth, and that what he had testified to that

day was the truth. During its subsequent re-direct examination, the

Commonwealth asked Anthony if he perjured himself by swearing to

statements of fact in his plea that were not true. Anthony responded he did

not. After discussing other unrelated issues, the Commonwealth resumed

questioning about his guilty plea:

CW: Yet your guilty plea, again, what’s that charge right there?

AM: Facilitation.

CW: To what?

AM: Complicity to first degree murder.

CW: Facilitation to complicity to murder. What’s the next one? 44 AM: Facilitation to first degree robbery.

CW: You entered guilty pleas to facilitating the complicity to robbery and murder. And the only person that you hauled around in your [minivan] was right there, your mom. Correct?

(Emphasis added). This exchange was improper and constitutes a textbook

example of what the Commonwealth is not permitted to do pursuant to Parido

and Tipton. By highlighting that Anthony pled guilty to facilitation, and that

the only person he facilitated was Manning, the Commonwealth was blatantly

attempting to use evidence of Anthony’s guilt as substantive evidence of

Manning’s guilt. We hold that this was error. This error was further

compounded during closing argument when the Commonwealth again asserted

that Anthony’s plea was proof of Manning’s guilt; it argued:

I told you during opening statements, I anticipated Anthony coming in here and trying to protect his mom. I knew that was going to happen, I see it all the time, it happens all the time. But, what you have to look at is what did Anthony tell law enforcement. What did he, when he entered his guilty plea under oath, what did he sign and what did he tell the judge was the truth. Now, one thing that is interesting is that Anthony pled guilty to facilitation to complicity to murder and facilitation to complicity to robbery. The only thing Anthony did was drove (sic) his mom. That’s it. He didn’t drive anyone else, he only drove his mom. So the only person he facilitated was his mom. And he pled guilty to that knowing he’s going to prison. And yet she’s not willing to accept her responsibility in this case, that’s why we’re here. He ponied up and said yeah, I facilitated, I drove her. She’s complicit, I drove her, that’s facilitation.

...

[Anthony] got up here and he would not say that his mom met with the two people, never would say mom went to the car. “I don’t know, I went to the van and I got in the van.” But he told law 45 enforcement that. He told the judge right here that. When he entered his guilty plea he said it. I’ve never met a defendant yet that wrote their plea agreement out. I’ve never, never seen that. So when [defense counsel] said “well you didn’t write this,” I’ve never seen a guilty plea that any defendant has wrote (sic). It doesn’t happen. That’s why we interview them, then we write the narrative, they read it, they agree to it, they say under oath yes that it true and correct, sign their name and enter a guilty plea in front of the judge again saying this is the truth, I swear, I enter my plea. Again, Anthony entered a guilty plea to facilitation to complicity. And the only person he dealt with was his mom. Only person.

Again, notwithstanding that closing arguments are not evidence, this was clear

error in that the Commonwealth was blatantly attempting to use Anthony’s

plea as substantive evidence of Manning’s guilt. We also note that the jury was

never given an admonition to only consider evidence of Anthony’s guilty plea as

affecting his credibility and not to consider it as evidence of Manning’s guilt.

Nevertheless, we must review this issue for palpable error. And, as

previously discussed, given the strength of the evidence against Manning, we

cannot conclude that there is a substantial possibility the outcome of her trial

would have been different if the Commonwealth’s improper use of Anthony’s

Alford plea was omitted from the evidence.

D. Alleged Comments on Right to Remain Silent

Manning’s final claim of error is that the Commonwealth improperly

elicited evidence regarding Manning’s invocation of her right to remain silent.

During Det. Luckingham’s direct examination, the Commonwealth asked him

to discuss his preliminary investigation in the case. During that line of

questioning, the Commonwealth asked him if a search warrant was ever

obtained to search Manning’s house. In response, Det. Luckingham began 46 explaining the timeline of when the search warrant was obtained for the first

search of her home:

So after Manning and Anthony come back to HPD, 29 Anthony is interviewed for a long time. It was a lengthy interview. We tried to talk to Manning again, she didn’t really want to talk at that time so we attempted a second interview and really got nowhere with it but after talking to Anthony and getting a lot of the details of his testimony, his statement of what happened, we came to learn that he was the one driving the van to and from the crime scene with Manning in the van and at that time we obtained the search warrant for the house Manning was living in.

(Emphasis added). Defense counsel did not object to the detective’s response.

After Det. Luckingham testified, the Commonwealth called four other

witnesses, which took nearly two hours. It then recalled Det. Luckingham. In

relevant part, the Commonwealth questioned him about his first interview with

Manning which occurred on the same morning as the murder. The

Commonwealth asked if during that interview Manning gave a statement about

the last time she spoke to Taylor. The detective said that Manning claimed the

last time she saw Taylor was around midnight on the night of the shooting, and

that she acknowledged that she purchased and smoked crack cocaine at

Taylor’s home during that visit. Then, without any prompting from the

Commonwealth Det. Luckingham said, “So, I mean there was another attempt

to talk to Manning, but she didn’t want to talk at that time.” Defense counsel

did not object to this testimony.

29 Hopkinsville Police Department.

47 During defense counsel’s cross-examination of Det. Luckingham during

recall, the defense highlighted the fact that Det. Luckingham had interviewed

Manning three times, but he did not interview any of the other persons of

interest three times. In response to this, the Commonwealth pursued the

following line of questioning on re-direct:

CW: When you interviewed [Manning] did you, in each of your interviews, did you get to ask all the questions you wanted to ask?

DL: 30 No.

CW: And how come?

DL: Basically because, well, the first one Manning just ended very abruptly—

At that point, defense counsel objected on the grounds that the questioning

was encroaching on Manning’s right to remain silent. The Commonwealth

asserted that defense counsel had opened the door to the questioning by

criticizing the detective for questioning Manning three times, but no one else.

The Commonwealth asserted that the detective should be allowed to explain

why he had to interview her three times. The trial court sustained defense

counsel’s objection and ruled that the detective could provide some explanation

as to why there were three interviews, but that he needed to avoid discussing

her refusal to answer questions. Defense counsel did not request an

admonition. The Commonwealth’s questioning resumed as follows:

CW: So when you interviewed [Manning], she abruptly just was done with the interview.

30 Det. Luckingham.

48 DL: Correct.

CW: And that happened on multiple occasions? As far as her just ending the interview?

DL: Yes.

CW: Okay, thus, multiple interviews, correct?

DL: Yes. 31

Before reaching the merits, we must address the parties’ dispute

concerning preservation. As discussed above, there are three pieces of Det.

Luckingham’s testimony that Manning challenges as an improper comment on

her right to remain silent. The first instance occurred during the first time Det.

Luckingham was called by the Commonwealth to testify, and Manning did not

object to it. The second and third instances occurred after Det. Luckingham

was recalled by the Commonwealth; Manning did not object to the second

instance, but she did object to the third. Manning concedes before that the

first two instances were therefore not preserved for review and requests review

of them for palpable error. However, because she objected to the third instance

of Det. Luckingham’s alleged comment on her right to remain silent, she

contends that instance should be considered preserved. The Commonwealth

responds that, because she did not object as soon as the basis for the objection

31 To clarify, for this particular line of questioning—beginning with the

detective’s testimony that she abruptly ended the interview and ending with the Commonwealth clarifying why the detective conducted three interviews with Manning—Manning only challenges the detective’s statement that she abruptly ended the interview. She has not alleged error in relation to the Commonwealth’s clarification as to why the detective conducted three interviews with her. Thus, there are three alleged instances of commenting on her right to remain silent rather than four.

49 became apparent, i.e., the first time Det. Luckingham arguably commented on

her right to remain silent, her arguments concerning all three instances should

be considered unpreserved. We disagree with the Commonwealth. We

consider the first two instances of Det. Luckingham’s testimony unpreserved

based on a lack of contemporaneous objection and will review those instances

for palpable error. We consider the third instance of Det. Luckingham’s

testimony preserved for our review.

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.” Hunt v.

Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009). This tenet was born out of the

United States Supreme Court’s holding in Doyle v. Ohio that, because Miranda

warnings implicitly inform an individual that their silence will not be used

against him or her, it would be fundamentally unfair to allow that individual’s

post-Miranda silence to be used against him or her at trial. 426 U.S. 610, 617-

18 (1976). 32 However,

Doyle and subsequent cases make it clear that 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

32 We note here that there was no indication from the testimony at trial that

Manning was provided with her Miranda warnings prior to any of her interviews with Det. Luckingham. However, as neither party has asserted otherwise, we will assume that she was for the purposes of our analysis.

50 where the prosecutor has repeated and emphasized post-arrest silence as a prosecutorial tool.

Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky. 1983), see also Hunt v.

Commonwealth, 304 S.W.3d 15, 36 (Ky. 2009). Those circumstances do not

exist in this case.

The first portion of Det. Luckingham’s testimony that Manning asserts

was an improper comment on her right to remain silent came in response to

the Commonwealth asking him when a search warrant to search Manning’s

house was obtained. As Det. Luckingham was providing a narrative of the

timeline concerning when the warrant was obtained, he spontaneously said,

“We tried to talk to Manning again, she didn’t really want to talk at that time,

so we attempted a second interview and really got nowhere with it[.]” Similarly,

the second instance of which Manning complains occurred while Det.

Luckingham was discussing the information he received from her during her

first interview. And, without prompting from the Commonwealth, he said, “So,

I mean there was another attempt to talk to Manning, but she didn’t want to

talk at that time.”

Accordingly, both statements were made by the detective while providing

the details of his investigation and neither were in response to a direct question

by the Commonwealth. Moreover, these were fleeting comments within a

multiple day trial and the Commonwealth did not improperly draw attention to

Manning’s choice to remain silent. Cf. Vincent v. Commonwealth, 281 S.W.3d

785, 789-90 (Ky. 2009); Hunt v. Commonwealth, 304 S.W.3d 15, 36-37 (Ky.

51 2009); Wallen, 657 S.W.2d at 233. We therefore conclude that no error,

palpable or otherwise, occurred concerning these portions of the detective’s

testimony.

Similarly, in context, we cannot conclude that the third piece of Det.

Luckingham’s testimony was an improper comment on Manning’s right to

remain silent. During the defense’s cross-examination of Det. Luckingham on

recall, the defense highlighted the fact that Det. Luckingham interviewed

Manning three times but did not interview any of the other persons of interest

in the case that many times. This undoubtedly was meant to support the

defense’s theory of the case that law enforcement immediately focused their

attention on Manning and failed to adequately pursue other potential suspects.

In response to this criticism by the defense, the Commonwealth elicited from

the detective that the reason he had to interview Manning three times was that

she abruptly ended the interviews on multiple occasions. The Commonwealth’s

questioning was not an attempt to emphasize Manning’s silence as a

prosecutorial tool. Rather, it was meant to allow the detective to explain why

numerous interviews occurred with Manning which in turn rebutted her

primary defense. As the Commonwealth properly limited its questioning of the

detective to explaining why multiple interviews with Manning occurred and did

not repeat or emphasize her choice to end the interviews as evidence of her

guilt, we hold that no improper comment on her right to remain silent occurred

and that the trial court accordingly did not abuse its discretion in overruling

her objection.

52 III. CONCLUSION

Based on the foregoing, we affirm.

All sitting. Bisig, Keller, Nickell and Thompson, JJ.; concur.

Conley, J., concurs in result only by separate opinion in which VanMeter, C.J.,

joins.

CONLEY, J., CONCURRING IN RESULT ONLY BY SEPARATE OPINION: I

concur in result only because the conduct of the Commonwealth at trial does

not warrant any greater imprimatur by this Court than already given. While I

agree the several errors committed by the Commonwealth were either harmless

or non-palpable, that is only in light of the totality of the physical evidence

linking Manning to this murder, including DNA evidence, and the fact that her

defense conceded her presence in the home with nothing better than a “wrong

place, wrong time” theory—God and juries have little regard for coincidence.

While the harmless error and palpable error rules exist for salutary reasons—

namely, that a conviction ought not be overturned on technicalities if the result

would have been the same but for the errors—there is a negative externality to

the rule in that the Commonwealth goes unpunished for its errors. In brief, the

lack of consequence can incentivize further breaches, and we have more and

more encountered similar poor conduct in other cases.

The improper impeachment of Anthony pursuant to KRE 609

regarding his prior conviction in Trigg County is something to be expected of a

novice but not an experienced lawyer in the Commonwealth’s Attorney’s office.

Anthony’s credibility, or lack thereof, did not need further demonstration by

53 the Commonwealth. For whatever reason though, the Commonwealth was

intent on portraying Anthony in as worse a light as possible and thus

committed this error when it could have trusted the jury to see Anthony’s lack

of credibility on its own terms. History is permeated with examples that the

overzealous pursuit of justice can itself lead one astray and the Commonwealth

would have done better to remember that below. The Commonwealth’s use of

Anthony’s Alford plea as evidence of Manning’s guilt was a deliberate flouting of

the rule of Parido v. Commonwealth, 547 S.W.2d 125, 126 (Ky. 1977); and did

constitute a blatant use of Anthony’s plea to implicate Manning. Tipton v.

Commonwealth, 640 S.W.2d 818, 820 (Ky. 1982). While such an error could be

forgiven if momentary and in the heat of cross examination, the fact that the

Commonwealth cited the plea agreement in its closing statement demonstrates

the error was deliberate.

It is my belief that the DNA evidence below is the only saving-grace

that allows this Court to conclude these errors do not warrant reversal. But the

presence of DNA evidence is not a license to play fast-and-loose with other

rules. When it comes to Commonwealth’s Attorneys’ and their assistants, “[n]o

one except for the judge himself is under a stricter obligation to see that every

defendant receives a fair trial, a trial in accordance with the law, which means

the law as laid down by the duly constituted authorities, and not as the

prosecuting attorney may think it ought to be.” Niemeyer v. Commonwealth,

533 S.W.2d 218, 222 (Ky. 1976), overruled on other grounds by Blake v.

Commonwealth, 646 S.W.2d 718 (Ky. 1983). To paraphrase C.S. Lewis,

54 experience is a brutal teacher, but at least you learn. And the day may come

where this Court has to reverse a conviction under a harmless or palpable error

standard, even though supported by DNA evidence, to rein in inexcusable trial

conduct.

VanMeter, C.J., joins.

COUNSEL FOR APPELLANT:

Shannon Renee Dupree Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Christopher Henry Assistant Attorney General