IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 19, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0305-MR
MARSHA LYNN MILLER APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE KATHLEEN LAPE, JUDGE NO. 21-CR-00258
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Marsha Lynn Miller (“Miller”) was convicted of one count of murder and
was sentenced to thirty years of imprisonment. After careful review, we affirm.
BACKGROUND
On March 29, 2021, Miller left her home after smoking Delta-8, a
genetically modified derivative of marijuana. Miller had not eaten much that
day and did not feel well, so she went out to get something to eat. Miller
claimed she felt dizzy, so she turned into a parking lot. Video surveillance
captured much of what happened next. Frank Harris (“Harris”), the victim,
walked alone across the mostly empty parking lot toward the road and
sidewalk until he was just offscreen. Miller’s black sedan pulled into the lot,
made a U-turn, and accelerated as she drove toward Harris. Once offscreen,
the surveillance footage captured the sound of a collision and the screech of tires coming to a halt. A witness told the jury that Harris’s body flew ten feet
into the air after Miller hit him. Harris died because of the collision.
That night, police interviewed Miller. She asserted she did not see Harris
until she hit him. Before trial, Dr. Timothy Allen (“Dr. Allen”) from the
Kentucky Correctional Psychiatric Center (KCPC) evaluated Miller for
competency to stand trial and testified at a competency hearing. Miller told Dr.
Allen that she did not remember hitting Harris. Dr. Paul Ebben (“Dr. Ebben”),
Miller’s own mental health expert, interviewed Miller to establish that she was
not criminally responsible for killing Harris. Miller told Dr. Ebben she
hallucinated that a man in black told her to hit Harris and believed Harris
himself was a hallucination. Dr. Ebben is the only witness Miller told that she
hallucinated.
There was also trial testimony regarding Miller’s medical history. Miller
was diagnosed as deaf at sixteen months old. Her language development was
slow. Miller was diagnosed with unspecified depression, unspecified psychosis
(sometimes referred to as unspecified schizophrenia), bipolar disorder,
cannabis use disorder, and borderline intellectual functioning. During her
police interview, Miller stated she was nearsighted and needed glasses but
could not afford them. Miller frequently smoked Delta-8.
Miller did not testify on her own behalf at trial.
The jury convicted Miller of murder, and she was sentenced to thirty
years in accordance with the jury’s recommendation. This appeal followed.
2 On appeal, Miller argues the trial court: (1) abused its discretion in
allowing the Commonwealth to cross-examine Dr. Allen regarding her criminal
responsibility; (2) palpably erred in allowing the Commonwealth to introduce
medical records during Dr. Allen’s testimony and failing to admonish the jury;
(3) abused its discretion in prohibiting Dr. Ebben from testifying at trial; and
(4) erred in failing to instruct the jury on reckless homicide.
ANALYSIS
I. The trial court did not abuse its discretion in allowing the Commonwealth to cross-examine Dr. Allen on Miller’s criminal responsibility.
First, Miller argues the trial court abused its discretion in allowing the
Commonwealth to cross-examine Dr. Allen regarding Miller’s criminal
responsibility. Miller argues this was a breach of the requirement in Conley v.
Commonwealth, 599 S.W.3d 756 (Ky. 2019), that the KCPC evaluator be
“walled off” and precluded from testifying as the Commonwealth’s rebuttal
expert at trial. Id. at 770. In Conley, the trial court initially denied the
defendant funds to retain a mental health expert and instead ordered a KCPC
evaluation. Id. at 762. After the trial court received KCPC’s report, it reversed
its initial ruling and held that the defendant “was entitled to an independent
mental health expert” and authorized funds to retain one. Id. The
Commonwealth then “invoked its right to a mental health expert to contest [the
defense expert’s] findings and opinions.” Id. The trial court “resolved the
Commonwealth's request for an expert witness by effectively repurposing [the
KCPC doctor] from her initial role as Conley's witness to the new role of being
3 the Commonwealth's witness.” Id. Thus, the KCPC evaluator switched sides
“and became a witness against Conley.” Id.
This Court held “the trial court abused its discretion by refusing to grant
Conley’s initial motion for mental health expert witness funding and instead
sending her to KCPC.” Id. at 766. The Court reasoned that “[t]he expert witness
appointed under KRS 1 504.100 for a competency to stand trial evaluation at
KCPC does not ‘belong’ to the defendant, but rather the expert acts as an agent
of the trial court.” Id. at 769; see also Gabbard v. Commonwealth, 887 S.W.2d
547, 550 (Ky. 1994). Conversely, “a mental health expert to which an indigent
defendant may be entitled under [Ake v. Oklahoma, 470 U.S. 68 (1985)] . . .
may accurately be described as ‘belonging’ to the defendant, unlike the
evaluator acting as an agent of the trial court in a competency to stand trial
proceeding.” Id. If the trial court determines “the defendant is entitled to an
expert under Ake, and the Commonwealth then seeks to retain KCPC to
provide the prosecution with a rebuttal mental health expert,” Ake compels “a
second KCPC evaluator be assigned to act as the Commonwealth’s expert
witness and, to the extent practicable, the initial KCPC evaluator and
evaluation should be “walled off” from the second evaluator who may then
serve as the Commonwealth's expert at trial.” Id. at 770. Following this
procedure ensures that “an indigent defendant be equalized with a person of
means defendant as required under Ake.” Id.
1 Kentucky Revised Statutes.
4 At trial, Miller asserts that she questioned Dr. Allen in accordance with
her notice. She asserts that on direct examination, his testimony remained
within the confines of Conley. However, she argues his cross-examination
testimony breached the Conley wall when the Commonwealth elicited Dr.
Allen’s opinion that Miller appreciated the criminality of her actions. Miller
omits that her notice also acknowledged that Dr. Allen could testify on subjects
raised by the Commonwealth on cross-examination.
Miller called Dr. Allen to explain Miller’s mental illness to the jury in
support of her insanity defense. During direct examination, Dr. Allen testified
that Miller was competent to stand trial but suffered from unspecified
psychosis with a history of paranoia, depression, and cannabis-use disorder.
He believed her psychosis may have been caused or exacerbated by drug use.
Defense counsel did not ask Dr. Allen if Miller was legally insane, but during
the closing argument, counsel used Dr. Allen’s testimony to convince the jury
that Miller was legally insane.
However, on cross-examination, Dr. Allen testified that he only evaluated
Miller for competency and did not evaluate Miller for insanity at the time of the
incident. The burden rests on the defendant “to prove to the satisfaction of the
jury that at the time the offense was committed, as a result of a mental disease
or defect, [she] lacked substantial capacity either to appreciate the criminality
of [her] conduct or to conform [her] conduct to the requirements of law.” Star v.
Commonwealth, 313 S.W.3d 30, 34 (Ky. 2010) (quoting Edwards v.
Commonwealth, 554 S.W.2d 380, 383 (Ky. 1977); KRS 504.020)).
5 There was no breach of the Conley walling-off requirement here. Conley
prohibits the Commonwealth from using the KCPC evaluator or the report as
rebuttal evidence against the defendant and requires that both the defendant
and the Commonwealth obtain separate mental health experts to testify at
trial. Id. at 770. It is undisputed that Miller and the Commonwealth each had
their own expert witnesses available to testify at trial. Miller called the initial
KCPC evaluator to testify at trial, not the Commonwealth. Prior to trial, Miller
provided notice that she would call Dr. Allen to testify regarding his diagnostic
impressions of her and to testify that she was diagnosed with unspecified
psychosis. The notice of Dr. Allen’s testimony excluded any opinion regarding
her culpability. After this notice, the Commonwealth informed the trial court
that it would not call its retained expert to rebut Dr. Ebben’s opinion.
Miller made no argument here or below that this was an improper topic
for cross-examination under the rules of evidence because cross-examination
on Miller’s criminal responsibility was clearly permissible. KRE 2 611(b)
provides: “A witness may be cross-examined on any matter relevant to any
issue in the case, including credibility. In the interests of justice, the trial court
may limit cross-examination with respect to matters not testified to on direct
examination.” The scope of “cross-examination is ‘wide open[,]’” but it “is
subject to the reasonable discretion of the court.” Conley, 599 S.W.3d at 780.
In raising an insanity defense, Miller opened the door to the Commonwealth’s
2 Kentucky Rules of Evidence.
6 cross-examination on her criminal responsibility. Though defense counsel did
not directly ask Dr. Allen if Miller was not criminally responsible for her actions
when she struck the victim with her car, defense counsel used Dr. Allen’s
testimony regarding Miller’s psychiatric diagnoses to support her insanity
defense. Thus, the trial court did not abuse its discretion in allowing the
Commonwealth to cross-examine Dr. Allen on Miller’s criminal responsibility.
Conley is inapplicable.
II. The trial court did not palpably err in allowing the Commonwealth to introduce the medical and school records during Dr. Allen’s cross- examination or in failing to admonish the jury.
Second, Miller argues she was prejudiced by the trial court’s failure to
provide Miller the safeguards of KRE 703 when it failed to make the required
findings and admonish the jury under KRE 703(b) regarding medical records
that came in through Dr. Allen’s testimony. As explained below, this argument
was not properly preserved, so we review for palpable error.
During Dr. Allen’s cross-examination, the Commonwealth moved to
admit Miller’s school and medical records used in compiling his report. The
Commonwealth also moved to admit medical records only reviewed by Dr.
Ebben, the defense expert, in compiling his report. Dr. Allen saw those records
for the first time during cross-examination because Miller did not provide them
for her competency evaluation. Miller objected to the entry of medical records.
Defense counsel’s objection to the records reviewed by Dr. Allen was not
specific and was based on her belief that there was an evidentiary rule about
7 the extent to which witnesses can testify about specific records reviewed. She
did not request specific findings or an admonition at that time.
Later, defense counsel objected when the Commonwealth introduced
hospital records that Dr. Allen did not have when preparing his report, but that
Dr. Ebben used only in compiling his report. Miller argued that those records
were outside the scope of what Dr. Allen could testify to because they were not
used in compiling his report. Dr. Allen did not review them prior to trial
because Miller did not provide them to him. Again, Miller failed to make a
contemporaneous objection on KRE 703(b) grounds.
Although the records were admitted through Dr. Allen’s testimony on the
third day of trial, Miller waited until the fifth day of trial to make an oral
objection on KRE 703 grounds. 3 The trial court took Miller’s objection under
advisement. Based on our review of the record, the trial court did not rule on
this motion.
The trial court’s failure to rule on Miller’s late objection is immaterial
because objections must be contemporaneous and specific to preserve a claim
of error. RCr 9.22, the contemporaneous objection rule, requires counsel to “at
the time the ruling or order of the court is made or sought, makes known to the
court the action which that party desires the court to take or any objection to
the action of the court, and on request of the court, the grounds therefor.”
Preservation of an issue not raised in a detailed motion in limine requires
3 The trial court heard no testimony on the fourth day of trial because Miller’s
final witness, Dr. Ebben was unavailable that day.
8 defense counsel to make a specific, contemporaneous objection because “the
trial judge cannot be expected to . . . infallibly recognize the point at which . . .
evidentiary boundaries have been crossed and respond sua sponte with an
unsolicited ruling.” MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 332 (Ky.
2014).
Though Miller made vague objections on hearsay grounds during Dr.
Allen’s testimony, Miller waited two trial days to make a specific objection
under KRE 703(b) and request findings and an admonition. Given that defense
counsel made earlier objections, she had the opportunity to object under KRE
703(b) and request an admonition sooner but failed to do so. See Clay v.
Commonwealth, 291 S.W.3d 210, 220 (Ky. 2008). As such, Miller’s argument is
unpreserved, so we review only for palpable error under RCr 10.26.
In reviewing for palpable error, this court will only reverse the judgment
if “the error is so manifest, fundamental and unambiguous that it threatens
the integrity of the judicial process.” Johnson v. Commonwealth, 676 S.W.3d
405, 417 (Ky. 2023) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky.
2006)). “It should be so egregious that it jumps off the page . . . and cries out
for relief.” Id. (quoting Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky.
2012)).
KRE 703(b) allows otherwise inadmissible evidence to come in “‘[i]f
determined to be trustworthy, necessary to illuminate testimony, and
unprivileged,’ to explain the basis of an expert’s opinion.” Hoff v.
9 Commonwealth, 394 S.W.3d 368, 374 (Ky. 2011) (quoting KRE 703(b)). KRE
703 provides:
(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(b) If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to subdivision (a) may at the discretion of the court be disclosed to the jury even though such facts or data are not admissible in evidence. Upon request the court shall admonish the jury to use such facts or data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference.
(c) Nothing in this rule is intended to limit the right of an opposing party to cross-examine an expert witness or to test the basis of an expert's opinion or inference.
In Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020), this Court
explained the application of KRE 703:
Subsection (a), in relevant part, embodies the well- established rule that experts are permitted to base their opinions on facts and data that are not otherwise admissible in evidence, if they are of a type reasonably relied upon by other experts in their field. Stated differently, the facts and data that an expert relies upon in forming his or her opinion do not need to be admissible in order for the expert's opinion itself to be admissible. Subsection (b) provides that if an expert relied on otherwise inadmissible evidence in forming their opinion, that evidence can come in as a means to challenge the validity and probative value of that expert's opinion. However, that evidence may only be admitted if the trial court determines that the evidence was “trustworthy, necessary to illuminate testimony, 10 and unprivileged.” Subsection (c) is self-explanatory: nothing in KRE 703(a) or (b) is meant to limit the ability of an opposing party to cross-examine or challenge the basis of an expert's opinion.
Id. at 899 (footnote omitted).
The Commonwealth was permitted to cross-examine Dr. Allen on the “full
limits of the dispute” under KRE 703(c). Commonwealth v. Armstrong, 556
S.W.3d 595, 600 (Ky. 2018); KRE 611. As in Exantus, cross-examination on
Miller’s insanity “itself was permissible” because she raised an insanity
defense. Exantus, 612 S.W.3d at 901. The trial court had the discretion to
permit disclosure to the jury of facts or data made known to an expert “at or
before the hearing.” KRE 703(a) and (b). Because Miller failed to make a timely
objection and request for an admonition under KRE 703(b) the trial court did
not make the requisite findings or exercise its discretion to admonish the jury.
Though failure to make the requisite findings of whether the medical
records were “trustworthy, necessary to illuminate testimony, and not
privileged” under KRE 703(b) is technically erroneous, the error was not
palpable. We cannot say that the trial court’s failure to make said findings was
so egregious that it affected the fairness of her proceedings. Brewer v.
Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Thus, the trial court did not
palpably err in failing to make the requisite findings prior to permitting
disclosure of the medical records to the jury.
The only remaining question is whether the trial court palpably erred in
failing to admonish the jury when the request was not made
11 contemporaneously. Although KRE 703(b) states that a trial court shall
admonish the jury when one is requested, Miller’s request was untimely.
Miller argues she was prejudiced by the admission and the trial court’s
failure to admonish the jury because the Commonwealth engaged Dr. Allen in a
lengthy review of the records, and its closing argument made multiple
references to the records to prove Miller’s intent to kill. Miller further argues
that the Commonwealth’s reliance on these records substantially influenced
the jury to find her guilty of intentional murder instead of a lesser mens rea or
was not guilty by reason of insanity.
Based on our review, the trial court’s failure to admonish the jury was
not so great as to affect the outcome of Miller’s trial. The evidence of her guilt
was overwhelming. Miller admitted to killing Harris. The only issue in dispute
was her mental state at the time of the incident. It is undisputed that Miller
slowly pulled into the parking lot and accelerated as she aimed her car toward
Harris. The jury could hear her revving the car engine as she sped toward him,
hear her car hitting his body, and his body landing on the ground after flying
up in the air.
During her interview with the police after the incident, Miller appeared to
be lucid. Miller’s only explanation for her actions was that she felt ill from
hunger and did not see Harris when she hit him. Miller did not mention
hallucinations in the interview. She did not express regret for hitting Harris.
Dr. Allen’s testimony did not support an insanity defense. He merely
evaluated Miller for competency, not insanity. He testified that during her
12 KCPC evaluation, Miller was not on any antipsychotic medication and showed
no signs of hallucinations. Miller only ever mentioned hallucinations when Dr.
Ebben interviewed her about the murder. The medical records introduced by
the Commonwealth during Dr. Allen’s cross-examination reinforced the
Commonwealth’s argument that Miller lacked any substantial history of
serious hallucinations.
The trial court had the discretion to disclose Miller’s medical records to
the jury even though it failed to make the requisite findings under KRE 703(b).
The evidence of her guilt was overwhelming, so the introduction of Miller’s
medical records through Dr. Allen’s cross-examination and lack of admonition
was not so significant as to impact the outcome of her trial. Thus, the trial
court did not palpably err in allowing the Commonwealth to introduce the
medical records or failing to admonish the jury.
III. The trial court did not abuse its discretion in excluding Dr. Ebben’s testimony after he changed his diagnosis during his direct examination.
Third, Miller argues the trial court abused its discretion in excluding Dr.
Ebben from testifying after he changed his diagnosis during direct
examination. “[A] trial court’s ruling on the admission of expert testimony
should not be disturbed unless there is an abuse of discretion.” Terry v.
Commonwealth, 332 S.W.3d 56, 60 (Ky. 2010) (citing Farmland Mut. Ins. Co. v.
Johnson, 36 S.W.3d 368, 387 (Ky. 2000)). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v.
13 Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (quoting Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999)).
Miller retained Dr. Ebben as an expert to evaluate her criminal
responsibility. Dr. Ebben’s report stated that he diagnosed her with
schizoaffective disorder. During his direct testimony, Dr. Ebben told the jury
his report stated Miller’s diagnosis as schizoaffective disorder, but he meant to
write that his diagnosis was unspecified schizophrenia. The trial court then
held an in camera hearing for Dr. Ebben to explain the discrepancy.
Dr. Ebben told the trial court that his diagnosis of unspecified
schizophrenia meant Miller suffered from either schizoaffective disorder or
bipolar disorder with psychosis. Dr. Ebben acknowledged schizophrenia and
schizoaffective disorder are two separate disorders. He believed the diagnosis
was likely schizoaffective disorder, but he was unsure. Dr. Ebben admitted that
if he were allowed to continue testifying, he would say Miller had unspecified
schizophrenia, which is not the same diagnosis as in his report. Miller
characterizes this mistake as a “typo.”
Miller argues the Commonwealth could have impeached Dr. Ebben, and
the jury should have been allowed to assess the weight of his testimony.
Additionally, she argues the Commonwealth declined to call its rebuttal expert
to testify at trial but instead cross-examined Dr. Allen to rebut Dr. Ebben.
Miller asserts Dr. Ebben’s opinion would have rebutted Dr. Allen’s cross-
examination, but she omits that she called Dr. Allen to testify. The
Commonwealth argues Dr. Ebben’s misstated diagnosis went beyond a mere
14 typo, and it did not receive proper notice of his testimony. The Commonwealth
argues it would be impossible for the jury to weigh Dr. Ebben’s testimony
because the Commonwealth could not effectively cross-examine Dr. Ebben due
to the surprise change in diagnosis.
RCr 7.24(3)(a) requires defense counsel to “furnish to the attorney for the
Commonwealth a written summary of any expert testimony that the defense
intends to introduce at trial. This summary must identify the witness and
describe that witness’s opinions, the bases and reasons for those opinions, and
the witness's qualifications.” “[W]hen a defendant intends to introduce an
expert (1) who will testify to a mental disease or defect or any other mental
condition of the defendant and (2) that testimony bears upon the issue of the
defendant’s guilt or punishment,” RCr 7.24(3)(a) “is triggered and the expert
must be disclosed.” Terry, 332 S.W.3d at 59. Advance disclosure allows the
Commonwealth “adequate pretrial preparation, to prevent surprise at trial, and
to avoid the necessity of delays during trial.” Id. at 59-60 (quoting United States
v. Davis, 93 F.3d 1286, 1294 (6th Cir. 1996)). The rule only applies when a
defendant seeks “to prove a lack of guilt due to mental illness at the time of the
crime.” Id. at 60 (quoting Powell v. Graham, 185 S.W.3d 624, 630 (Ky. 2006)).
In Jones v. Commonwealth, 237 S.W.3d 153 (Ky. 2007), this Court held it
was an abuse of discretion for the trial court to limit the appellant’s expert
witness testimony when “Jones had not informed the Commonwealth during
discovery that he intended for Dr. Melekovets to criticize the Commonwealth's
expert’s methodologies.” Id. at 155. This Court reasoned that “it surely could
15 not have come as a surprise to the Commonwealth that Dr. Melekovets would
disagree with the conclusion and/or analytical process used by the
Commonwealth’s DNA expert in light of the conclusions contained in Dr.
Melekovets’s report.” Id. at 158-59.
The Jones opinion distinguishes from Barnett v. Commonwealth, 763
S.W.2d 119 (Ky. 1988), in which this Court held “that it was error for the trial
court to permit the serologist to testify at trial about the hand washing because
the serologist’s report did not contain any opinions regarding hand washing.”
Id. at 157-58.
Here, there is no dispute that Miller filed a disclosure of Dr. Ebben’s
report under RCr 7.24. The disclosure stated “Dr. Ebben will testify that Ms.
Miller is likely diagnosed with schizoaffective disorder. He will further testify
that there is a possibility that Ms. Miller was experiencing severe mental
illness, potentially impacting her ability to be held criminally responsible at the
time of the incident; however, there are many uncertainties and unknowns.”
The issue is that, at trial, Dr. Ebben testified that his diagnosis was
unspecified schizophrenia instead of schizoaffective disorder.
During Dr. Ebben’s in camera testimony, he stated schizoaffective
disorder and unspecified schizophrenia are different diagnoses in the DSM-5. 4
He also testified that unspecified schizophrenia is an umbrella diagnosis when
it is unclear whether the patient suffers from schizoaffective disorder or bipolar
4 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition.
16 disorder with psychosis. Dr. Ebben’s report states that Miller most likely
suffered from schizoaffective disorder instead of bipolar disorder with
psychosis. However, given that the specified schizophrenia is a different
diagnosis, the Commonwealth, which is not a mental health expert, was
unaware of this change in diagnosis prior to the trial. It was reasonable for the
trial court to determine the Commonwealth was unable to adequately prepare
to cross-examine Dr. Ebben. Thus, the trial court’s ruling was rooted in
fairness and supported by sound legal principles, so we cannot say the trial
court abused its discretion in excluding Dr. Ebben’s testimony. 5
Miller also argues that because Dr. Allen testified Miller never talked to
him about experiencing hallucinations, Dr. Ebben should have been permitted
to testify that Miller told him she hallucinated to support her insanity defense.
This is impermissible. Evidence supporting an insanity defense “must come
from some admissible source.” Padgett v. Commonwealth, 312 S.W.3d 336, 341
(Ky. 2010). In Padgett, the defendant sought “to prove the presence of her
extreme emotional disturbance with expert testimony based primarily on her
out-of-court statements.” Id. “Where the defendant does not testify and there is
no other factual basis to support a defense of extreme emotional disturbance,
that defense cannot be bootstrapped into the evidence by an expert opinion
5 We note that Miller’s counsel was unaware that there would be a discrepancy
between Dr. Ebben’s report and his testimony until the issue arose during Dr. Ebben’s testimony.
17 premised primarily on out-of-court information furnished by the defendant.”
Id. at 341-42 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998)).
Miller did not testify on her behalf at trial. Though Dr. Ebben reviewed
prior medical records in assessing Miller’s criminal responsibility, the only
evidence negating Miller’s culpability when the incident occurred was her out-
of-court statements that she hallucinated during the incident to Dr. Ebben.
There were no medical records regarding Miller’s mental state near the time of
the incident. There was no other evidence that Miller hallucinated or suffered
from delusions severe enough to support her insanity defense. Miller did not
mention anything indicating she experienced hallucinations or delusions to the
police or Dr. Allen. Because Miller did not testify and there was no other
evidence regarding her criminal responsibility, she attempted to bootstrap her
insanity defense into evidence through Dr. Ebben’s testimony with uncross-
examined, out-of-court information furnished by Miller. Thus, the trial court
did not abuse its discretion in prohibiting Dr. Ebben from testifying further at
trial following the disclosure of the discrepancy.
IV. The trial court did not abuse its discretion in declining to instruct the jury on reckless homicide.
Fourth, Miller argues the trial court abused its discretion in failing to
instruct the jury on reckless homicide. “[I]n deciding whether to give a
requested instruction the trial court must decide ‘whether the evidence would
permit a reasonable juror to make the finding the instruction authorizes.’ . . .
[T]he trial judge’s superior view of evidence warrants a measure of deference
from appellate courts that is reflected in the abuse of discretion standard.” 18 Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015) (quoting Springfield v.
Commonwealth, 410 S.W.3d 589, 599 (Ky. 2013), overruled on other grounds,
Univ. Med. Ctr., Inc. v. Shaub, 628 S.W.3d 112 (Ky. 2021)).
Although “a trial court must instruct the jury on the whole law of the
case,” a trial court is not required to “place before the jury speculative theories
. . . merely because the testimony includes some basis for the speculation.”
Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015) (quotation marks
and footnote omitted). Instructing on a lesser-included offense is only required
when “the evidence would permit the jury to rationally find the defendant not
guilty of the primary offense, but guilty of the lesser offense.” Id. (internal
quotation marks and footnote omitted). Stated differently, “[i]nstructing on a
lesser-included offense is proper only if the jury could consider a doubt as to
the greater offense and also find guilt beyond a reasonable doubt on the lesser
offense.” Id. (internal quotation marks and footnote omitted).
Under a “‘straight’ reckless homicide theory, . . . the defendant acts
without the specific intent to kill and in doing so, fails to perceive a substantial
and unjustifiable risk that his actions could cause the victim’s death.”
Commonwealth v. Hasch, 421 S.W.3d 349, 355 (Ky. 2013) (citing KRS
507.050(1) and KRS 501.020(4)). “[F]ailure to perceive that risk must be ‘a
gross deviation from the standard of care that a reasonable person would
observe in the situation,’” and “the victim’s death supplies the element of
recklessness necessary to sustain a reckless homicide conviction.” Id. at 356
(quoting KRS 501.020 (4)).
19 In Hasch, the appellee “killed her husband by shooting him with a gun.”
Id. at 357. She “was skilled in the use of firearms” and understood the
ramifications of pulling the trigger at a short distance from her husband’s
head. Id. This Court held:
No rational juror could believe that Appellee failed to perceive the risk of death inherent in her conduct of firing a pistol, with or without her eyes closed, in the direction of another person at such close range. The essential element of straight reckless homicide—her failure to perceive the risk that her actions could result in another’s death—is undoubtedly absent here[.]
Id.
Miller argues that her statement to a detective that she did not intend to
kill Harris was sufficient to instruct the jury on reckless homicide. However,
this argument is speculative. Based on the evidence, no rational juror could
believe that Miller failed to perceive the risk in her conduct of suddenly
accelerating her car as Harris walked in front of her car.
The trial court instructed the jury on murder and the lesser included
offenses of first-degree manslaughter and second-degree manslaughter, which
both require a mental element greater than reckless. The evidence did not
support an instruction on reckless homicide. The jury found Miller guilty of
murder, so it rejected a lesser mental state. Thus, the trial court did not abuse
its discretion in failing to instruct the jury on the charge of reckless homicide.
20 CONCLUSION
For the foregoing reasons, we affirm the judgment of the Kenton Circuit
Court.
All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, Nickell, JJ.,
concur. Thompson, J., concurs in result only by separate opinion.
THOMPSON, J., CONCURRING IN RESULT ONLY: I agree with the
majority opinion that it is appropriate to affirm, because the evidence of guilt
was overwhelming, but I vehemently disagree with the majority’s analysis that
it was appropriate for the trial court to allow the admission of medical records
and school records without previous disclosure. Whether or not Marsha Lynn
Miller’s objection to this error was sufficient to preserve it, this was a terrible
and intolerable error! I write separately to emphasize the seriousness of such
an error; to emphasize how highly inappropriate it was for the Commonwealth
to introduce such records in such a manner; and to inform trial courts that
they must be on their guard against allowing records to be admitted into
evidence without a proper foundation.
The basis for the admission of records through cross-examination of
Miller’s expert, Dr. Allen, was not satisfied. Kentucky Rules of Evidence (KRE)
703(a) specifies that the facts or data upon which an expert bases an opinion,
“[i]f of a type reasonably relied upon by experts in the particular field in
forming opinions . . . need not be admissible in evidence.” KRE 703(b) provides
a very narrow basis upon which to admit such facts or data: “If determined to
be trustworthy, necessary to illuminate testimony, and unprivileged, facts or
21 data relied upon by an expert pursuant to subdivision (a) may at the discretion
of the court be disclosed to the jury even though such facts or data are not
admissible in evidence.” Additionally, if such facts and data are admitted, KRE
703(b) specifies further: “Upon request the court shall admonish the jury to use
such facts or data only for the purpose of evaluating the validity and probative
value of the expert's opinion or inference.”
As we know from the majority opinion, medical records, school records,
and hospital records only reviewed by Dr. Ebben, the defense expert who was
ultimately not allowed to testify, and not reviewed by Dr. Allen were admitted.
Therefore, no appropriate foundation for their admission was provided.
While medical records may be admissible under the business records
exception to hearsay if also authenticated, and pursuant to KRE 803(4)
statements made for the purposes of medical treatment or diagnosis are
admissible, that does not mean that every statement within those medical
records is admissible. Many other hearsay statements also contained therein
will not be. Parties need an opportunity to comb through medical records to try
to parse admissible evidence from inadmissible evidence and make all needed
objections before such records should ever be admitted into evidence in a
criminal case.
Additionally, even if an expert has relied upon medical records, it does
not mean that everything within those records is admissible, for certainly there
may be facts and data within those records which are appropriately used by
experts in the field, and other facts and data which would not be used by
22 experts within the field. Among the subset of facts and data actually relied
upon, not all of such records will qualify as being “trustworthy, necessary to
illuminate testimony, and unprivileged[.]” The trial court as gatekeeper must be
cognizant of the limits of admitting evidence under this rule.
As noted in Exantus v. Commonwealth, 612 S.W.3d 871, 900–01 (Ky.
2020), strict adherence to the requirements of KRE 703(b), “that the evidence
be determined by the trial court to be ‘trustworthy, necessary to illuminate
testimony, and unprivileged’” is required as “it is . . . the only safeguard in KRE
703 against the erroneous admission of evidence[.]” A trial court should
address the factual determinations required by KRE 703(b) before admitting
such records into evidence. Hoff v. Commonwealth, 394 S.W.3d 368, 374 (Ky.
2011); Exantus, 612 S.W.3d at 901; Rabovsky v. Commonwealth, 973 S.W.2d 6,
11 (Ky. 1998). Depending on the prejudice resulting from the wrongful
admission of inadmissible statements, this can constitute a palpable, reversible
error. Hoff, 394 S.W.3d at 375.
Finally, it is mandatory that an appropriate admonition be given upon
request, and it should not matter at what time the request takes place as long
as it occurs before the jury retires. The trial court had a duty to so instruct the
jury when Miller requested an admonition, even if it was made with a tardy
objection.
Given the overwhelming evidence against Miller, she was not ultimately
prejudiced by the trial court’s failure to exclude this evidence, which was
further compounded by the trial court’s failure to give an appropriate
23 instruction. However, ultimately, the result would not have been any different
had this evidence been excluded and/or the jury been admonished. Therefore, I
agree that this error was not palpable.
Accordingly, I concur in result only.
COUNSEL FOR APPELLANT:
Jennifer Elizabeth Hubbard Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General