IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 19, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0353-MR
MATTHEW KELLEY APPELLANT
ON APPEAL FROM CARTER CIRCUIT COURT V. HONORABLE REBECCA K. PHILLIPS, JUDGE NO. 18-CR-00295
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Matthew Kelley appeals from his conviction and sentence for
manslaughter by the Carter Circuit Court following his jury trial. Kelley shot
his wife’s grandfather. Kelley argues that his motion to suppress his
confessions should have been granted and that palpable error occurred when
his wife and an officer were allowed to testify that Kelley’s demeanor was not
consistent with innocence. We affirm.
I. FACTUAL AND LEGAL BACKGROUND
Kelley, his wife Heather Kelley (Heather), Heather’s four children, and
Heather’s grandparents, Bradley Vernon Duncan and Connie Duncan (Connie),
lived together in the Duncans’ home. On the evening of October 6, 2018, Kelley
and Heather were drinking vodka in their room and talking. During the night, after midnight on October 7, 2018, Duncan got out of
bed because he believed Kelley and Heather were arguing. According to
Heather, Duncan misunderstood Kelley’s and Heather’s prior conversation, as
they were not arguing.
While Duncan and Kelley argued out in the hall, Heather tried to
intervene. Heather testified that during this argument, Duncan ended up
calling Kelley “a piece of crap and a liar.”
Connie got out of bed and found the others in the hall. According to
Connie, there was light in the hall from Heather’s bedroom door and from the
living room light.
According to Heather, Kelley returned to their room and came out with a
gun, told Duncan he “was sick of being called a liar” and aimed his gun at
Duncan. After Duncan said, “Don’t you point that gun at me,” Kelley shot
Duncan. The bullet hit Duncan in the mouth and exited his lower neck area,
killing him.
Heather called 911 but was unable to talk on the phone. Kelley
communicated with the dispatcher and reported that someone had “run up on”
him, he “didn’t know who it was[,]” but later said he shot Duncan because he
“just came up on” Kelley, “cussing and carrying on.” Kelley said he knew he
would “pay for [his] [explicative] actions.”
2 The police responded. Kelley was cooperative. Detective Jeff Kelley
(Detective Jeff) 1 interviewed Kelley twice outside the residence, before and after
interviewing Heather and Connie. Both times Detective Jeff interviewed Kelley,
Kelley signed a Miranda2 waiver form and Detective Jeff recorded audio of their
conversation. The audio recordings of these interviews were presented at trial.
Detective Jeff could smell alcohol on Kelley’s breath, but Kelley’s responses
were cogent, and Detective Jeff had no concerns about interviewing him.
Kelley provided two different explanations of what had occurred in his
police interviews. In the first interview, Kelley reported hearing “hooting and
hollering” in the hallway and “a man’s voice” that he “did not recognize.” Kelley
stated that after hearing “a big thump” he left his bedroom with a gun and saw
Heather “get bashed against a wall.” Kelley reported that he couldn’t see who
the male was because there were no lights on and he raised his weapon and
told the unknown man to stop, but the man “took two steps toward [Kelley]”
and in response Kelley “flipped the safety off” and fired just after the light came
on.
In the second interview, Detective Jeff told Kelley that his story was
different from that provided by Heather and Connie and appealed for him to be
honest and not make excuses like a child that broke something. Kelley then
provided a different version of the events, stating that he “stepped into” an
1 Detective Kelley is not a relation of Kelley. To avoid confusion between the
appellant and the detective, we refer to the detective as Detective Jeff. 2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 argument between “Heather and her grandfather[,]” Duncan “got smart-a**ed,
and [Kelley] was already in a p*ssed off mood anyway.” So, when Duncan
“kinda nudged [Heather] out of the way,” Kelley “stepped forward,” Duncan
“drawed back” like “he was going to hit [Kelley], and [Kelley] shot him.”
Kelley clarified he had the gun because his intention was to “pistol whup
‘em” but that “[w]hen [he] raised [his] weapon, the safety was already off, [and
the] hammer was already back. When [he] raised it to go bust ‘em, it went off.”
On October 19, 2018, the grand jury indicted Kelley for capital murder
and a superseding indictment for the same crime was filed on November 2,
2018.
The trial and hearings were delayed by the measures to address COVID-
19. The trial court denied Kelley’s motion to suppress his statements from his
two interviews with police.
A four-day trial was held in February 2022. The jury convicted Kelley of
the lesser-included charge of first-degree manslaughter and recommended the
maximum sentence of twenty years of incarceration.
After the trial, sentencing was delayed. 3 On February 9, 2024, the
judgment for manslaughter was imposed, and the trial court sentenced Kelley
to twenty years of incarceration in accordance with the jury’s recommendation.
The trial court also confirmed its prior order denying Kelley’s motion to
suppress his statements in a written order.
3 It appears that some of this delay was caused by the fact that there was a
second criminal prosecution against Kelley.
4 II. ANALYSIS
A. The Motion to Suppress Was Properly Denied.
On April 29, 2020, Kelley filed a motion to suppress all of his statements
to police during the two interviews as being involuntary due to his intoxication.
A Zoom hearing was held on this motion on January 26, 2021. Detective Jeff
and Heather testified, and Kelley introduced the recordings of the interviews
into evidence. The parties filed briefs afterwards. On June 27, 2021, the trial
court orally denied the motion to suppress.
There was no dispute that Kelley had been drinking. The only questions
were how much, whether it had rendered him intoxicated, and whether when
combined with police techniques that level of intoxication rendered his
confession involuntary. Kelley waived all consideration that his intoxication led
to mania and his confession should be excluded on such grounds in both his
briefing below and in his appellate brief.
Kelley’s blood alcohol level was not tested through a blood or
breathalyzer test to establish his intoxication level. No expert testified to his
level of intoxication based on the available evidence.
As to the first interview Detective Jeff had with Kelley, Detective Jeff
testified that when he encountered Kelley, Kelley was sitting on the tailgate of a
pickup. Detective Jeff read Kelley his Miranda rights and Kelley signed his
agreement on the form.
Detective Jeff noted that Kelley smelled a little bit of alcohol, but he did
not smell any alcohol on Kelley until Kelley spoke, and in his experience if
5 someone was very intoxicated, he could smell the odor emanating from the
person’s body, rather than just on the person’s breath. Kelley told Detective
Jeff that Kelley had been “hitting the bottle” for about an hour prior to the
shooting and started drinking vodka once he got home. While this concerned
Detective Jeff, he explained that based on the way Kelley was answering basic
questions, the detective did not think that Kelley was too intoxicated to talk,
noting that Kelley had no problem sitting upright on the tailgate without being
propped up by anything. They sat together on the tailgate and during the
interviews nothing out of the ordinary occurred to make Detective Jeff believe
that Kelley could not properly be questioned.
In between the interviews with Kelley, Detective Jeff went in the house
and interviewed Heather and Connie. Heather and Connie both indicated to
him that Kelley had been drinking but was not drunk. Heather confirmed that
Kelley had been drinking vodka and only vodka. While Detective Jeff was in the
home, he noticed alcohol bottles in the bedroom that Kelley shared with
Heather. There were two open whiskey bottles and open beer bottles, but he
never saw a bottle of vodka.
As to his second interview with Kelley, Detective Jeff testified that he
again read Kelley his rights and Kelley acted the same as in the first interview.
Kelley was coherent, able to formulate answers to questions in complete
sentences and there was nothing to indicate that he was not understanding.
Detective Jeff testified that Kelley still smelled of alcohol in the same way he
had before, and while the detective observed that Kelley slurred his speech
6 some, he could not tell if that was just the way Kelley talked or was caused by
the alcohol Kelley had imbibed, but based on Kelley’s ability to form sentences
and speak coherently, he concluded that was just how Kelley talked.
Detective Jeff acknowledged that he could have waited to talk to Kelley
until he was sober and stated he would have done so if Kelley had been
incoherent, but explained that nothing occurred that indicated to him that
Kelley was unable to be questioned. Detective Jeff noted that Kelley never lost
his concentration, never indicated he did not understand, and gave accurate
information about himself and the people with whom he lived.
Heather testified that Kelley accompanied her to her work at Subway and
had a couple of drinks from a 5th of fruit flavored vodka while there. He drove
them home and had no problem driving. They arrived home at around 11:30
p.m., they both drank from the same bottle of vodka, and neither of them
drank anything else.
Heather stated that she drank more than Kelley, he quit drinking before
her, and she finished the bottle. She explained that Kelley did not appear
drunk to her, he knew what was going on, he could drink quite a bit, and he
drank regularly.
The trial court reviewed the audio recordings of Kelley’s and Heather’s
interviews at the scene.
In Kelley’s briefing of his motion to suppress to the trial court, Kelley
argued that there was ample evidence he was intoxicated, and his intoxication
was relevant as under such circumstances a lesser quantum of police coercion
7 was needed. He also argued that Detective Jeff could have waited until he was
sober to interview him.
On June 27, 2021, the trial court orally denied Kelley’s motion to
suppress.
On February 9, 2024, a written order was entered denying Kelley’s
motion to suppress. In this order, the trial court specifically found after
reviewing the audio recording of the first interview that: (1) the recording
supported Detective Jeff’s testimony; (2) Kelley responded appropriately to
questions regarding his name, social security number, birthdate, wife’s
birthdate, who lived in the home and his relationship with them; and (3) Kelley
“spoke clearly and did not mumble or stumble over his words[,] . . . was not
nodding off or otherwise distracted[,]” and “followed the questioning and
responded promptly and appropriately, appearing at all times to be lucid and
coherent.”
As to the second interview, the trial court specifically found: (1) the audio
recording supported Detective Jeff’s testimony; (2) the variation in defendant’s
account between the interviews “was not due to the incapacity of the Defendant
or an inability to recognize the truth”; (3) the defendant “spoke clearly and
coherently . . . in a detailed, complete manner. He was clearly oriented and
displayed no confusion, mania, or bizarre behavior.”
In terms of the voluntariness of the interaction, the trial court found:
During both interviews, Detective [Jeff] and the Defendant interacted with one another in a calm and cordial manner. There were no raised voices, threatening statements, or hostile behavior.
8 At no time did the Defendant indicate that he did not wish to speak with Detective [Jeff] or otherwise ask to stop the interview process.
Regarding Heather’s testimony, the trial court noted it was inconsistent
at times to the statement she gave at the scene regarding her drinking and
Kelley’s drinking but “what was consistent was Ms. Kelley’s belief that the
Defendant was not intoxicated” based on her personal observations.
The trial court noted that Kelley did not testify and found that “no
evidence was presented that the Defendant was unable to understand and
appreciate the circumstances, unable to reason or exercise judgment, unable to
understand questions, unable to respond appropriately, or otherwise unable to
make an informed and voluntarily waiver of his rights.”
The trial court opined that the recorded audio interviews “overwhelmingly
support the conclusion that the Defendant acted voluntarily when submitting
to the interviews with Detective [Jeff][,] . . . . was in control of his faculties[,]
and was in control of the information that he wished to provide.” The trial court
noted that Kelley was “engaged . . . throughout both interviews and clearly was
alert, attentive, and oriented[,]” responded to questioning “appropriately and
readily[,]” and the interactions between Kelley and Detective Jeff were “calm
and cordial[.]” The trial court emphasized that it was significant that Kelley
“stated on the recording of the first interview that he ‘fully’ understood his
rights[,]” did not dispute Detective Jeff’s statement that he understood Kelley
wanted to talk, and Kelley never asked to retract his verbal and written
waivers.
9 The trial court concluded that “[Kelley’s] consumption of alcohol (and the
impact of same) did not rise to a level that would support a conclusion that
[Kelley’s] statements were coerced or the product of coercion. Aside from
intoxication, [Kelley] did not point to other factors that rendered his statements
involuntary. A review of the evidence indicates that such factors do not exist.”
The trial court noted that there was no evidence that Kelley was
surrounded by law enforcement while sitting on the truck tailgate; there was
no evidence there were any attempts to intimidate, embarrass, or humiliate
Kelley; there was no evidence of physical force or threats used against him;
there was no evidence interviewing him in the middle of the night when the
officers came on the scene was a scheme to attempt to deprive him of sleep and
he also never asked to rest; there was no evidence he was deprived of food,
drink, or an opportunity for a restroom break; and there was no evidence that
he ever wished to stop speaking. Accordingly, the trial court ruled that the
police activity was not coercive, and Kelley participated in the interviews “of his
own free will.”
“When reviewing a trial court’s denial of a motion to suppress, we utilize
a clear error standard of review for factual findings and a de novo standard of
review for conclusions of law.” Jackson v. Commonwealth, 187 S.W.3d 300, 305
(Ky. 2006). We deem the trial court’s findings of fact as conclusive if they are
supported by substantial evidence. Smith v. Commonwealth, 410 S.W.3d 160,
165 (Ky. 2013).
10 In considering whether a confession is involuntary under the Fifth
Amendment,
[t]he ultimate test of voluntariness lies in an examination of the totality of the circumstances. . . . [A] confession is voluntary unless, under the totality of the circumstances, a defendant’s “will has been overborne and his capacity for self-determination critically impaired.” Schneckloth [v. Bustamonte, 412 U.S. 218,] 225 [(1973)]. This requires an examination of both the “characteristics of the accused and the details of the interrogation.” Id. at 226[.]
Soto v. Commonwealth, 139 S.W.3d 827, 847 (Ky. 2004).
“The three criteria used to assess voluntariness are 1) whether the police
activity was ‘objectively coercive;’ 2) whether the coercion overbore the will of
the defendant; and 3) whether the defendant showed that the coercive police
activity was the ‘crucial motivating factor’ behind the defendant’s confession.”
Tigue v. Commonwealth, 600 S.W.3d 140, 167 (Ky. 2018) (quoting Dye v.
Commonwealth, 411 S.W.3d 227, 232 (Ky. 2013)).
As thoroughly explained in Smith:
Generally speaking, no constitutional provision protects a drunken defendant from confessing to his crimes. “The fact that a person is intoxicated does not necessarily disable him from comprehending the intent of his admissions or from giving a true account of the occurrences to which they have reference.” Peters v. Commonwealth, 403 S.W.2d 686, 689 (Ky. 1966). As noted by Justice Palmore in Britt v. Commonwealth, “[i]f we accept the confessions of the stupid, there is no good reason not to accept those of the drunk.” 512 S.W.2d 496, 500 (Ky. 1974). “We are not at all persuaded that it would make sound law to hold that the combination of intoxication and police custody must add up to a violation of due process.” Id. at 501.
However, there are two circumstances in which a defendant’s level of intoxication might play a role in the suppression decision. First, intoxication may become relevant because a “lesser quantum” of police coercion is needed to overcome the will of an
11 intoxicated defendant. Hill v. Anderson, 300 F.3d 679, 682 (6th Cir. 2002) (quoting United States v. Sablotny, 21 F.3d 747, 751 (7th Cir. 1994)) (“When a suspect suffers from some mental incapacity, such as intoxication or retardation, and the incapacity is known to interrogating officers, a ‘lesser quantum of coercion’ is necessary to call a confession into question.”); United States v. Haddon, 927 F.2d 942, 946 (7th Cir. 1991) (“[W]hen the interrogating officers reasonably should have known that a suspect is under the influence of drugs or alcohol, a lesser quantum of coercion may be sufficient to call into question the voluntariness of the confession.”); Jones v. Commonwealth, 560 S.W.2d 810, 814 (Ky. 1977) (intoxication may be a factor that, “under certain circumstances,” could cause a confession to be suppressed for lack of voluntariness). Thus, trial courts must consider a defendant’s level of intoxication when considering whether police coercion has overborne a defendant’s will so as to render the confession involuntary for purposes of the Due Process Clause.
Second, a confession may be suppressed when the defendant was “intoxicated to the degree of mania” or was hallucinating, functionally insane, or otherwise “unable to understand the meaning of his statements.” Halvorsen v. Commonwealth, 730 S.W.2d 921, 927 (Ky. 1986) (quoting Britt, 512 S.W.2d at 499); Peters, 403 S.W.2d at 688. Under those circumstances, suppression may be warranted not because the confession was “coerced” but because it is unreliable. Britt, 512 S.W.2d at 500 (quoting Marshall & Steiner, The Confessions of a Drunk, 59 ABAJ 497 (1973)) (“[W]hen intoxication reaches the state in which one has hallucinations or ‘begins to confabulate to compensate for his loss of memory for recent events’ . . . the truth of what he says becomes strongly suspect.”).
410 S.W.3d at 164-65. As explained in Britt, 512 S.W.2d at 500, “[l]oss of
inhibitions and muscular coordination, impaired judgment, and subsequent
amnesia do not necessarily (if at all) indicate that an intoxicated person did not
know what he was saying when he said it. ‘In vino veritas’ is an expression that
did not originate in fancy.” Accordingly, “the basic question is whether the
accused was[,]” despite the intoxication, “in ‘sufficient possession of his
12 faculties to give a reliable statement.’” Anderson v. Commonwealth, 352 S.W.3d
577, 583 (Ky. 2011) (quoting Britt, 512 S.W.2d at 500).
The only issue before us is whether Kelley’s level of intoxication made a
lesser degree of police coercion overcome his will. Kelley did not call an expert
and there was no testing on the scene as to his blood alcohol levels. While
Kelley focuses on his level of intoxication, argues that the police should have
waited until he was sober to interview him, and correctly observes that a lesser
degree of police coercion is required to make his statements involuntary under
such circumstances, Kelley has failed to present any evidence to indicate there
was any significant level of police coercion accompanying his agreement to be
interviewed or occurring during his interviews. At most, Kelley has established
that the police interviews were accompanied by the minimal level of coercion
that would accompany any arrest.
The trial court’s findings of fact were based on the substantial evidence
presented at the suppression hearing and upon review of the recorded
interviews themselves. These findings are conclusive that Kelley was able to
cogently participate in the interviews and that the interviews occurred while
Kelley and the detective were sitting on the tailgate of a truck, without
significant police presence nearby, and they had a calm and conversational
exchange. Such circumstances are insufficient to establish as a matter of law
that Kelley’s interview statements were involuntary due to the combination of
his intoxication and police coercion.
13 We affirm the trial court’s decision to deny Kelley’s motion to suppress.
The trial court’s factual findings were properly supported by substantial
evidence and were not, therefore, clearly erroneous. Based on such findings,
the trial court’s legal conclusions were appropriate.
B. No Palpable Error Occurred Based on Witnesses’ Comments about Kelley’s Demeanor after Kelley Killed Duncan.
Kelley states that lay witness opinion testimony provided pursuant to
Kentucky Rules of Evidence (KRE) 701 cannot include testimony on the
veracity of a witness, citing Carson v. Commonwealth, 621 S.W.3d 443, 446
(Ky. 2021). Kelley argues that Heather and Trooper Hamilton were offering
improper opinion testimony by commenting on Kelley’s veracity where they
stated that he did not appear to be upset after shooting Duncan. He compares
their testimony to that found to be unduly prejudicial in Ordway v.
Commonwealth, 391 S.W.3d 762, 775 (Ky. 2013), where a police officer opined
that based on his experience, the defendant did not act like someone who had
shot someone in self-defense. Kelley agrees that this issue was not properly
preserved; therefore, we review for palpable error.
“A palpable error which affects the substantial rights of a party may be
considered . . . by an appellate court on appeal, even though insufficiently
raised or preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error.” Kentucky
Rules of Criminal Procedure (RCr) 10.26. We will reverse for palpable error if
the “probability of a different result or error [is] so fundamental as to threaten a
defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 14 S.W.3d 1, 3 (Ky. 2006). “Relief is only warranted where the error also results in
manifest injustice.” James v. Commonwealth, 681 S.W.3d 60, 69 (Ky. 2023).
During their testimony, Trooper Hamilton and Heather both testified
about Kelley’s demeanor after shooting Duncan. When Heather was asked
about Kelley’s emotional state after the shooting, she testified that Kelley
“wasn’t showing any emotion. It didn’t bother him at all . . . . [H]e looked like it
was no big deal. No tears . . . not the way I would assume somebody would act
after they just shot somebody.”
When Trooper Hamilton was asked to describe Kelley’s emotional state
over the course of the hour he sat with Kelley, he testified “It was actually
pretty odd considering the circumstances of what had just happened. He was
very calm and collected.” Trooper Hamilton stated that he did not recall seeing
Kelley cry or become upset.
Both witnesses testified about their observations and offered opinions as
to what their observations meant. However, no one testified that Kelley’s
demeanor meant that his defense was without merit or that his statements
about accidentally shooting Duncan or acting in defense of Heather were lies.
Instead, Kelley argues that the witnesses’ descriptions of Kelley’s behavior
could lead to an inference that he was guilty.
In Ordway a detective implied in his testimony, over the defense’s
objections “that he had unique expertise in how those who have lawfully
engaged in self-protection act, and then authoritatively testified through
opinion testimony that Appellant, by the way he acted following the shootings,
15 did not fit that profile.” 391 S.W.3d at 775. Our Court held that such
“testimony was incompetent because it permitted the police detective to
authoritatively suggest how innocent persons behave after they lawfully engage
in an act of self-defense, and to then, with some measure of certainty, exclude
Appellant from that class of persons based upon his conduct following the
shooting.” Id. at 775-76.
An error similar to that which occurred in Ordway does not necessarily
satisfy the standard for palpable error, especially where it is not as blatant and
there is more evidence of guilt. See Commonwealth v. Rieder, 474 S.W.3d 143,
146–47 (Ky. 2015).
As explained in James, 681 S.W.3d at 70, while a police officer can
properly comment on the defendant’s body language and provide observations
of the witness’s demeanor, such as that the defendant “seemed ‘cold,’ or that
he did not exhibit physical emotion in any way[,]” it is improper for a witness to
comment that the defendant “was not ‘appropriately distraught’” because such
an opinion “ventured beyond the scope of appropriate lay opinion.” In James,
the Court ultimately concluded that reversal for palpable error was not
warranted, distinguishing Ordway and Carson, explaining:
[The officer] did not testify that [the defendant’s] lack of distress fit within any element of the crimes charged or negated his self- defense theory. He did not state or imply that [the defendant] was lying in any way or fabricating his defense. Instead, he stated that [the defendant] did not act in a way that he would expect someone who went through a traumatic event would act.
James, 681 S.W.3d at 71.
16 We must consider separately the pure observations the witnesses
provided and their lay opinions about the meanings to be attributed to what
they observed. Heather and Trooper Hamilton could properly testify about their
personal observations about Kelley’s reaction. This included Heather testifying
that Kelley was not showing any emotion or crying, and Trooper Hamilton
testifying that Kelley was calm and did not cry or become upset. This
information was pertinent and relevant. 4
In contrast, it was clear error for Heather and Trooper Hamilton to
provide lay opinions as to what Kelley’s calm reaction meant. Such statements
included Heather’s opinion that Kelley’s lack of reaction made it seem like
killing Duncan “was no big deal” and “didn’t bother him at all,” and Trooper
Hamilton’s opinion that Kelley’s reaction was “odd.” Those opinions exceeded
the scope of appropriate lay witness testimony because they implicitly related
to whether he was guilty.
However, such opinions, when considering the evidence as a whole and
the ultimate verdict and sentence, did not rise to the level of palpable error.
There was no question that Kelley had in fact shot Duncan, there was
eyewitness testimony to the event, and Kelley himself admitted that he shot
Duncan, providing varied reasons for his conduct in the 911 call and in his
interviews. While Heather’s and Trooper Hamilton’s opinions crossed the line
into inappropriate lay witness opinion testimony which constituted clear error,
4 The recorded interviews only captured audio and covered a different period
than when Heather and Trooper Hamilton interacted with Kelley.
17 such testimony was not so blatantly improper as to comment directly on
Kelley’s probable guilt or innocence, such as opining that Kelley’s behavior
after the shooting meant he intended to deliberately kill Duncan and had no
remorse about his conduct.
We additionally note that prejudice was not established. As the jury
convicted Kelley of first-degree manslaughter rather than murder, this
indicated that the jury must have believed Kelley’s defense to some extent
rather than being inappropriately swayed by the witnesses’ opinions that his
calm behavior afterwards was “odd” or indicated that he did not care.
III. CONCLUSION
Kelley’s grounds for appeal are without merit. Accordingly, we affirm the
Carter Circuit Court’s judgment.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen K. Schmidt Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Joseph Crawford White Assistant Solicitor General