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RENDERED: AUGUST 20, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0029-MR
MICHAEL HURLEY APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE ANNIE O’CONNELL, JUDGE NO. 22-CR-01720
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT AFFIRMING
After a jury trial, the Jefferson Circuit Court convicted Michael Steele Empson Hurley of murder, two counts of first-degree assault, fourth-degree assault, driving under the influence (DUI), and being a second-degree persistent felony offender (PFO-2), and sentenced Hurley to a total of seventy years of incarceration.
Hurley appeals, arguing the trial court erred by allowing victim impact testimony to be wrongfully introduced during the guilt phase of the trial and failing to grant his motion for a mistrial after the prosecutor made a reference to him being in jail. He argues palpable error occurred and he is entitled to a new penalty phase because prior dismissed charges were introduced into evidence.
We affirm. While errors occurred, they do not require reversal.
I. FACTUAL AND LEGAL BACKGROUND On the evening of July 5, 2022, a family of four, parents Trey and Amy, and children A.J. and C.J., 1 were pedestrians on the sidewalk on the corner of West Market Street and Second Street in Louisville, Kentucky. The family had come from Kansas for A.J.’s basketball tournament, and they were waiting to cross the road.
Meanwhile, Hurley was driving towards them on West Market Street. He failed to stop at two red lights and veered onto the sidewalk at the intersection with Second, striking and injuring each member of the family.
Hurley was detained at the scene. He appeared to be impaired or sleepy and was observed to have “pinpoint” pupils which did not appropriately react to light. Detective Dean Kisling interviewed Hurley and administered a field sobriety test. Hurley discussed the accident and admitted to taking hydrocodone and an aspirin for recent oral surgery.
Detective Kisling observed three indications of possible impairment on the walk and turn test and three indications of possible impairment on the one-legged stand test. Hurley was arrested for DUI and four counts of first- degree assault.
Hurley consented to two blood draws, which were taken that evening at 10:41 P.M. and 11:46 P.M. He tested positive for fentanyl. The first draw showed fentanyl levels of ten nanograms per milliliter (ng/ml), and the second
1 We do not use the family’s last name and refer to the children by their initials because they were minors at the time of the accident.
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draw showed fentanyl levels of nine ng/ml. Expert testimony established that this far exceeded the therapeutic dose and could be lethal.
Trey later died from his injuries. Amy and A.J. suffered serious injuries requiring multiple surgeries and extensive hospitalization and rehabilitation; they have continuing impairments. C.J. had relatively minor injuries.
The grand jury indicted Hurley for the murder of Trey, assault in the first degree for injuring Amy, assault in the first degree for injuring A.J., assault in the fourth degree for injuring C.J., and DUI first offense with aggravating circumstances. Later, Hurley was also indicted for being a PFO-2 based on his previous convictions in Indiana.
At Hurley’s trial, medical testimony established the nature of A.J.’s and Amy’s injuries. A.J. and Amy also testified about their injuries and how those injuries had changed their lives. Hurley made objections during the Commonwealth’s opening statement and during A.J.’s testimony about references to her former athletic ability, but did not object about similar testimony and comments during Amy’s testimony or the Commonwealth’s closing argument.
Hurley’s defense focused on whether he had the mens rea necessary to commit the crimes as charged. He received jury instructions on lesser included offenses and tried to persuade the jury to instead convict him of those lesser charges.
The jury convicted Hurley as charged. During the penalty phase, the jury recommended sentences of thirty-five years for murder, twenty years each for
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the two counts of assault in the first degree, twelve months for assault in the fourth degree, and thirty days for the DUI. After determining he was a PFO-2, the jury did not change its sentencing recommendations regarding the two counts of first-degree assault. The jury recommended that Hurley’s felony sentences be served consecutively for a total of seventy-five years of incarceration. In the amended judgment, the trial court reduced Hurley’s sentence to the statutory maximum of seventy years.
Hurley appealed his convictions and sentence to this Court as a matter of right.
II. ANALYSIS
A. The Commonwealth Properly Introduced Evidence to Establish Serious Physical Injury and Appropriately Presented Victim Background Information.
The Commonwealth told the jury during its opening statement how it would prove the seriousness of the injuries A.J. and Amy suffered. Hurley objected when the prosecution said A.J. “wasn’t just a basketball player, she was a Division I scholarship athlete.” The trial court overruled this objection after the prosecution argued that it was establishing A.J. was fit and very healthy when she suffered a serious bodily injury.
A.J. testified for a significant amount of time about the nature of her injuries. This included the physical problems she suffered from as a result of the accident, including having suffered a traumatic brain injury (TBI), undergoing multiple surgeries, living with double vision which left her unable to read, suffering weakness on her right side which kept her from using her
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dominant right hand to brush her hair or eat with utensils, constant knee and shoulder pain, having trouble walking, her voice sounding different, her general lack of coordination, and being unable to shoot a basketball.
When the prosecutor asked A.J. if she could play pickleball, Hurley objected. The trial court sustained this objection on the ground that this was “one question too far.”
A.J. testified her TBI impaired her long-term memory. She had trouble building new memories. She could not remember what happened in class and she required a notetaker at college. The injury changed her personality. She had fewer friends because she could not remember what they told her, and she was being treated for depression. A.J. explained that she was still undergoing physical therapy and occupational therapy and that despite her best efforts, her recovery was limited.
When the prosecutor asked A.J. whether she was able to play sports before the accident, she said “yes” and stated she was “very good at them” and recited her sports: “basketball, volleyball, track, pickleball, swimming, a lot of them.” The prosecutor followed up by asking A.J. about her current abilities in sports. Hurley objected as this was “getting into victim impact.” His objection was summarily overruled.
A.J. then testified she was a Division I athlete, the Kansas state high jump champion, all-state for volleyball and basketball and very fit. Now, she could barely climb stairs and couldn’t play with her brothers. She went from having the grades to be a valedictorian after having completed her junior year,
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to missing fall semester during her senior year, and then returning in the spring for two days a week in a wheelchair. She could not remember being hospitalized. She described relearning how to walk and talk and the various surgeries she had to her knees, right shoulder, and eyes. She shared her fears as to whether she could hold down a job with her physical and mental limitations.
Amy testified about the nature of her own injuries. She was in a coma for two weeks, had broken bones throughout her body, and suffered a shattered leg and shoulder. She explained that part of her leg was replaced with a metal rod; it became infected, she had to have a second surgery, and she had to remain on antibiotics for the remainder of her life and suffered constant pain in her leg and shoulder. Amy testified that after she returned home after an extensive hospital and rehabilitation stay, she came home in a wheelchair and had to have twenty-four-hour care for five months. She testified that before the accident, she used to run twelve to fifteen miles a week and participated in 5K and 10K races but now could no longer run. She had trouble with her balance, had trouble going down any stairs, and could not play with C.J.
Amy also testified about A.J.’s injuries and their impact. Amy stated that A.J.’s skull and vertebrae were shattered, A.J. suffered a TBI, all the ligaments in her knees were replaced, she was slower and had regressed, and was not the same A.J. as before. Amy testified that A.J. was sad, had trouble making friends because she did not have a filter on what she said anymore, and was depressed.
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During the Commonwealth’s closing argument, the prosecution talked about A.J. being a Division I athlete. The prosecution contrasted what A.J. and Amy could do before, compared with what they could do now.
On appeal, Hurley emphasizes that the prosecution spent nearly forty-
one minutes questioning A.J. about the collision’s impact on her life, and over eighteen minutes questioning Amy about the collision’s impact on her and A.J.’s lives. Hurley argues that the overruling of his initial objection during the Commonwealth’s opening statement “opened the floodgate” and the Court should find his errors preserved. He alternatively asks for palpable error review regarding all the other statements that he now concludes constituted victim impact testimony.
Hurley argues that this testimony and argument regarding A.J.’s and Amy’s tragic stories were irrelevant because medical testimony had already established that they suffered serious bodily injuries, and its real purpose was to stoke the sympathy of the jury. He further argues this testimony should have been excluded as cumulative under Kentucky Rules of Evidence (KRE) 403. He also argues that the error of the trial court, in failing to sua sponte exclude such arguments and testimony, was an error of constitutional magnitude because it deprived him of a fundamentally fair trial and due process.
1. The Prosecution Has the Burden to Prove Serious Physical Injury.
In resolving Hurley’s arguments, we examine what use can be made of evidence that relates to establishing charged crimes, the victims’ background,
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and victim impact, and any overlap between these categories. We consider whether evidence relevant for establishing that serious bodily injury occurred was nevertheless required to be excluded as more prejudicial than probative.
Serious physical injury is an element of assault in the first degree. KRS 508.010(1)(b). This made A.J.’s and Amy’s injuries relevant during the guilt phase of the trial. This evidence was also relevant during the penalty phase for a different purpose, to establish the impact of the crime. See KRS 532.055.
“Generally . . . the prosecution is permitted to prove its case by competent evidence of its own choosing[.]” Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky. 1998). See Burton v. Commonwealth, 300 S.W.3d 126, 143 (Ky. 2009); Johnson v. Commonwealth, 105 S.W.3d 430, 438-39 (Ky. 2003); Chumbler v. Commonwealth, 905 S.W.2d 488 (Ky. 1995). Lay witnesses are competent to testify about their own injuries and their testimony can “provide[] important information about the extent and duration of [their] injuries.” Young v. Commonwealth, 718 S.W.3d 698, 712-13 (Ky. 2025). If the evidence is probative as to the defendant’s guilt, it is generally relevant and admissible. Johnson, 105 S.W.3d at 438.
The prosecution also can appropriately introduce background information about the victims, including their prior physical condition. Richmond v. Commonwealth, 534 S.W.3d 228, 232–33 (Ky. 2017).
“[T]he difference between victim impact evidence and victim background evidence is whether the evidence is ‘aimed primarily at appealing to the jurors’ sympathies’ or ‘providing an understanding of the nature of the crime[.]’”
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Alderson v. Commonwealth, 670 S.W.3d 884, 893 (Ky. 2023) (quoting Tackett v. Commonwealth, 445 S.W.3d 20, 33 (Ky. 2014)). “‘[H]ighly inflammatory’ evidence . . . is not appropriate for introduction during the guilt phase of the trial.” Id. (quoting Ice v. Commonwealth, 667 S.W.2d 671, 675-76 (Ky. 1984)).
KRE 403 only requires the exclusion of evidence which is “unduly prejudicial,” that is “unnecessarily or unreasonably hurtful[.]” Johnson, 105 S.W.3d at 439; Romans v. Commonwealth, 547 S.W.2d 128, 134 (Ky. 1977). A KRE 403 analysis can only be disturbed if the trial court abused its discretion. Mayo v. Commonwealth, 322 S.W.3d 41, 50 (Ky. 2010).
2. The Preserved Objections Were Properly Overruled.
We conclude that the trial court did not abuse its discretion in overruling the defense’s objection to the prosecution’s brief mention in its opening statement that A.J. was a Division I athlete. This background information tied into what she was doing in Louisville and related to the Commonwealth’s burden to establish she suffered a serious bodily injury.
Similarly, we conclude that the trial court did not abuse its discretion in overruling the objection regarding allowing A.J. to testify about her previous athletic ability. This information was relevant as it helped the jury to understand how significantly A.J.’s prior physical condition had changed from the injuries she sustained, thus helping the Commonwealth meet its burden to establish that she had suffered a serious bodily injury.
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3. The Unpreserved Errors Were Not Palpable.
Hurley’s remaining arguments regarding A.J.’s and Amy’s testimony, and the Commonwealth’s closing argument are unpreserved. We decline Hurley’s invitation to proceed as if he preserved these arguments based on Alderson. These alleged errors do not justify reversal under the palpable error standard.
The Kentucky Rules of Criminal Procedure (RCr) 10.26 provide as follows:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or 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.
Manifest injustice only occurs if “the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)).
Hurley argues that A.J.’s and Amy’s testimony was largely irrelevant as their serious physical injuries were already established by medical testimony and most of their testimony should have been excluded as victim impact evidence. We disagree, as the Commonwealth was entitled to prove its own case as it saw fit, and this evidence was relevant to satisfy the Commonwealth’s burden of proof in establishing an element of first-degree assault: that A.J. and Amy suffered serious physical injuries.
A.J. appropriately testified about her TBI, her severe physical injuries, what occurred while she was hospitalized and in rehab, her ongoing physical
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and mental limitations, and the therapies and additional help she still required due to this lasting injury. Similarly, Amy appropriately testified about her own physical trauma and the lasting physical limitations she had, along with the injuries A.J. suffered and how she was changed. A.J. and Amy were calm and not overly emotional in providing their detailed testimony.
Their testimony may have occasionally strayed into A.J.’s resulting mental and emotional injuries, matters which do not appear to be included in the definition for “serious physical injury.” See KRS 500.080 (defining “physical injury” and “serious physical injury”); State v. Rossier, 397 A.2d 110, 112 (Conn. 1978); State v. Garcia, 673 P.2d 955, 958 (Ariz. Ct. App. 1983). Such matters are more appropriately addressed as victim impact testimony, which allows for “a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim or victims[.]” KRS 532.055(2)(a)7 (emphasis added).
However, given A.J.’s and Amy’s extensive, appropriate, and relevant testimony as to the nature of their injuries, such minor and limited deviations were insignificant and did not constitute palpable error. Likewise, while some of their testimony was perhaps cumulative, allowing this testimony did not constitute palpable error.
Hurley also argues that the prosecution’s closing argument inappropriately contained victim impact evidence. We disagree.
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In the prosecution’s closing argument, the prosecution stated that it had established A.J. and Amy suffered from serious bodily injuries. Its slide contrasting A.J.’s and Amy’s prior and current abilities was proper argument.
Overwhelming evidence established that Hurley hit the family with his car and caused their injuries. This included extensive eyewitness testimony along with video evidence of the accident and its aftermath. The amount of fentanyl in Hurley’s blood left no question that he was driving while seriously impaired. B. An Admonition Cured the Prosecutor’s Inappropriate Comment.
During the direct examination of Hurley’s mother, after establishing that Hurley had taken hydrocodone in June and July prior to the accident, the prosecutor commented that: “Well, we’ll never know about August because he was in jail for what he did to that family.”
Hurley objected. The trial court sustained the objection and admonished the jury as follows: “The jury will disregard that last statement [from the prosecution].”
Hurley requested a mistrial, arguing that Hurley was before the jury in nice clothes, explaining the jury would not have known how long he was in custody if not for that statement. The trial court denied this motion on the basis that the jury had been properly admonished, was presumed to follow that instruction, and that the statement was not prejudicial enough to rise to the level of requiring a mistrial.
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On appeal, Hurley argues that the prosecution’s statement essentially “stripped Hurley of his court attire and dressed him in jail attire” thus “diminishing his presumption of innocence.” Hurley further argues that “the statement creates an improper inference that, because the trial court found him culpable . . . it kept Hurley in jail long after his arrest” thus negating his presumption of innocence. Hurley states that “[t[he prosecution’s inflammatory statement rang a bell that no curative admonition could silence.” Hurley argues that this statement is more prejudicial in light of the prejudicial victim impact testimony and argues that the trial court should have given a better admonition.
“[T]his Court has long held that an admonition is usually sufficient to cure an erroneous admission of evidence and there is a presumption that the jury will heed such an admonition.” Gray v. Commonwealth, 203 S.W.3d 679, 691 (Ky. 2006). See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
A trial court only declares a mistrial if a harmful event is of such magnitude that a litigant would be denied a fair and impartial trial and the prejudicial effect could be removed in no other way. Stated differently, the court must find a manifest, urgent, or real necessity for a mistrial. The trial court has broad discretion in determining when such a necessity exists because the trial judge is “best situated intelligently to make such a decision.” The trial court’s decision to deny a motion for a mistrial should not be disturbed absent an abuse of discretion.
Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (footnote citations omitted).
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We have recognized two sets of circumstances in which an admonition will not be presumed to have cured a reference to inadmissible evidence.
(1) when there is an overwhelming probability that the jury will be unable to follow the court’s admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant, . . . or
(2) when the question was asked without a factual basis and was “inflammatory” or “highly prejudicial.”
Bartley v. Commonwealth, 400 S.W.3d 714, 735 (Ky. 2013) (quoting Johnson, 105 S.W.3d at 441). We review a trial court’s decision not to grant a mistrial for abuse of discretion. Matthews, 163 S.W.3d at 17.
It should come as no surprise to the jury that people who are accused of serious crimes may be in jail for a certain amount of time after they are arrested. As the Commonwealth points out, a reference to Hurley being in jail in August 2022, did not imply that he remained in jail at the time of the trial more than two years later.
The prosecutor inappropriately referenced Hurley being in jail. While we do not condone the prosecutor’s comment, these types of errors are appropriately corrected through admonition, whether an admonition is requested or not. See Hilton v. Commonwealth, 539 S.W.3d 1, 15-16 (Ky. 2018) (two references to the defendant being in jail); St. Clair v. Commonwealth, 455 S.W.3d 869, 891–92 (Ky. 2015) (reference to defendant being wanted for murder and other crimes when he got to Kentucky and reference to friends and family who helped him thereby being in subsequent danger); Gray, 203 S.W.3d
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at 691–92 (defendant’s taped reference to being in jail); Johnson, 105 S.W.3d at 441 (reference to defendant’s prior conviction); Grundy v. Commonwealth, 25 S.W.3d 76, 82–83 (Ky. 2000) (reference to another investigation). Accordingly, the trial court did not abuse its discretion in denying Hurley’s motion for a mistrial.
C. The Commonwealth’s Introduction of Inadmissible Evidence During the Penalty Phase Does Not Require Reversal.
Hurley argues he is entitled to a new penalty phase in his trial based on the improper admission of an exhibit. Hurley acknowledges this error was unpreserved and seeks palpable error review.
In establishing the predicate offenses for Hurley to be classified as a PFO-2, the Commonwealth’s Penalty Exhibit 3 was admitted and submitted to the jury. This exhibit included the information from Indiana, which contained charges that were subsequently dismissed against Hurley: leaving the scene of an accident, possession of a narcotic drug, and maintaining a common nuisance—controlled substances.
This exhibit was introduced through a witness who only testified that Hurley had two felony convictions in Indiana. In the prosecutor’s argument, the prosecutor directed the jury to look at the information but did not point out or specifically discuss the dismissed charges.
Hurley argues that the admission of this evidence was clearly in error and created a manifest injustice for him because the jury learned that he committed similar crimes before, which stoked its passion against him and resulted in a much higher sentence. While we agree that the evidence as to
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dismissed charges should not have been admitted, we do not conclude under the facts before us that this error was palpable.
KRS 532.055(2)(a)2 provides that during a sentencing hearing the Commonwealth may offer evidence as to “[t]he nature of prior offenses for which he was convicted[.]” Pursuant to KRS 532.080(2)(c)3, to establish Hurley was a PFO-2, the Commonwealth had to prove Hurley had been convicted of a predicate prior felony, which was the purpose of admitting this exhibit. There was no proper purpose for admitting any evidence regarding dismissed charges. Blane v. Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814, 828 (Ky. 2015); Chavies v. Commonwealth, 354 S.W.3d 103, 115 (Ky. 2011).
However, establishing that this clear error occurred is insufficient to require reversal for a new sentencing phase. Instead, Hurley must establish that a palpable error occurred. In Blane, we ruled that an error was palpable where the defendant received the maximum sentence from the jury. 364 S.W. 3d at 152-53. In contrast, in Chavies, we ruled that the error was not palpable where the defendant did not receive a maximum sentence and the dismissed charges listed in an admitted exhibit were not pointed out to the jury by anyone. 354 S.W.3d at 115. We explained that it was more likely that the jury’s sentences were the result of the defendant’s past convictions rather than the dismissed charges. Id. at 116. See Parker v. Commonwealth, 482 S.W.3d 394, 406–08 (Ky. 2016); Martin v. Commonwealth, 409 S.W.3d 340, 347–49 (Ky.
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2013) (both applying Chavies in similar factual situations to rule no palpable error occurred).
The prosecutor telling the jury that it could examine the information does not change our assessment. Hurley did not receive the maximum PFO-2 sentence on the first-degree assault charges. Instead, the jury chose not to increase his sentences on these charges whatsoever from what it had previously imposed. The jury’s decision to recommend consecutive rather than concurrent sentences can be attributed to Trey’s death and the debilitating permanent injuries suffered by A.J. and Amy. This error is not palpable, and Hurley is not entitled to a new penalty phase.
III. CONCLUSION
We affirm the judgment and sentence imposed on Hurley by the Jefferson Circuit Court. While Hurley did not receive a perfect trial, the errors that occurred do not require reversal.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jared Travis Bewley Kathleen Kallaher Schmidt Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Ryan D. Mosley Assistant Solicitor General