RENDERED: APRIL 23, 2026 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0423-MR
PAUL JONES APPELLANT
ON APPEAL FROM BATH CIRCUIT COURT V. HONORABLE DAVID A. BARBER, JUDGE NO. 21-CR-00062
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING AND REMANDING
Appellant, Paul Jones, appeals as a matter of right 1 from a Bath Circuit
Court judgment convicting him of first-degree trafficking in a controlled
substance, first offense, and of being a first-degree persistent felony offender.
He argues that the Commonwealth committed misconduct during his cross-
examination and closing argument by violating the rule set out in Moss v.
Commonwealth, 949 S.W.2d 579 (Ky. 1997), and that the trial court’s
amendment of his sentence from ten years to twenty was improper. The
Commonwealth argues that no reversible Moss violation occurred and that the
amended sentence was permissible, but also argues, at the threshold, that
Jones’s conviction-related claim is untimely.
1 KY CONST. §110(2)(b). We hold that Jones’s appeal is properly before this Court; that the
Commonwealth’s cross-examination of Jones violated Moss; and that, in the
particular circumstances of this trial, the resulting misconduct was palpable
and requires a new trial. Because we reverse Jones’s conviction and remand for
a new trial, we do not decide the parties’ dispute concerning the later
resentencing proceedings.
I. Facts and Procedural History
The Commonwealth’s proof centered on a controlled buy conducted
through confidential informant Brian Wilson. Police searched Wilson before
and after the buy, observed him enter Jones’s residence, and recovered
methamphetamine after he emerged. The police did not, however, observe what
occurred inside the residence. The trial record alludes to an audio recording
device fitted to Wilson, and to an audio recording that was apparently
inconclusive. The Commonwealth did not play any such recording for the jury
or seek to enter the same into evidence. Jones testified that Wilson did not buy
drugs from him at all, but instead interacted with a woman who was present
there. Thus, although some parts of the Commonwealth’s proof were not
disputed, the core factual dispute concerned what happened during the period
Wilson was inside the residence and, more specifically, who sold him the
methamphetamine.
The defense theory was correspondingly clear. From opening statement
forward, the defense attacked Wilson’s credibility and sought to show that the
case depended on whether the jury believed him. Evidence was presented,
2 through the testimony of the leading officer on the case (Officer Southerland) as
well as through that of Wilson himself, that Wilson had been stopped for DUI
while on probation for drug trafficking; that an apparent controlled substance
was found in his vehicle; that no charge was brought in connection with that
substance; that the substance was never tested; that Wilson offered to help
police gather evidence against Jones in response to this arrest; and that Wilson
worked with police only in this case. The defense also elicited agreement from
Officer Southerland on cross-examination that police were relying on Wilson’s
account for what occurred during the unobserved interval inside the residence.
Jones testified in his own defense. The prosecutor’s cross-examination of
Jones was brief. As the video record reflects, it lasted only about five minutes
and consisted of roughly ten substantial questions. Nearly all of those
questions were directed at the same point: attacking Jones’s credibility and
neutralizing his effort to portray Wilson as the witness whose trustworthiness
the case depended upon. Within that short examination, the prosecutor asked
three questions that are the focus of this appeal: (1) after referencing Wilson’s
testimony that he had purchased narcotics from Jones before, the
Commonwealth asked, “So he just made that up?”; (2) after establishing that
Jones used methamphetamine and denied selling methamphetamine to Wilson,
the Commonwealth asked, “You just happened to have methamphetamine, use
methamphetamine, and then Mr. Wilson is not telling the truth?”; and (3) after
reciting Wilson’s admissions that he was a felon, had received a DUI, and had
3 purchased narcotics from Jones, the Commonwealth asked, “But your
testimony today is that that’s not accurate?”
Defense counsel did not object to these questions. The jury convicted
Jones. It recommended a five-year sentence on the trafficking conviction, later
enhanced to twenty years by the PFO finding. On June 6, 2024, the circuit
court orally pronounced a ten-year sentence and entered a signed docket entry
reflecting five years enhanced to ten years. The court later reopened
sentencing, held a further hearing, and stated that the ten-year sentence had
been based on mistaken information found in the pre-sentence investigation
report. It then entered an amended AOC-450 judgment on August 19, 2024
imposing a twenty-year sentence. Jones filed his notice of appeal from that
August judgment.
II. Jones’s appeal of his conviction is properly before this Court.
The Commonwealth first contends that Jones’s challenge to his
conviction must be dismissed as untimely. Its argument is that if the June 6,
2024 docket entry was a final judgment, as Jones himself would have it when
pressing his argument on the re-sentencing issue, then Jones had to file a
notice of appeal within thirty days of that entry. Because Jones instead
appealed from the later August 19 judgment that followed the amended
sentence, the Commonwealth says the only timely appealed matter is the later
sentence, not the conviction-related Moss claim.
We are not persuaded.
4 A defendant has 30 days to file an appeal from a final judgment of
conviction. Ky. R. App. P. (RAP) 3(A)(1). The final judgment includes the
sentencing decision by the court. Ky. R. Crim. P. (RCr) 11.04. However, this
case does not present the ordinary situation in which a trial court enters
judgment, the case becomes fixed, and a party simply declines or otherwise
fails to appeal. After the June 6 sentencing proceeding, the circuit court signed
an order on June 14 placing the case back on the docket “to correct
Defendant’s sentence on the record.” That order was entered June 17. A
further sentencing hearing was then held in August, and the circuit court later
entered the amended AOC-450 judgment sentencing Jones to twenty years on
August 19, 2024. In other words, while the time to file an appeal from a final
judgment is thirty days, only eleven days had passed since the June 6
sentencing proceeding when Jones received notice that the trial court sua
sponte was claiming to reopen the matter. At that point, Jones waited for that
re-hearing and its result, and then timely filed his notice of appeal, including
his arguments regarding the conviction itself and the re-sentencing together in
the one appeal.
The Commonwealth seems to contend that Jones should have appealed
the conviction within thirty days of the June 6 entry, while waiting to see what
would happen regarding the sentence at a rehearing that was still in the
future, and then filed a separate appeal to the re-sentencing. First, this is
incorrect on the merits, as we will discuss shortly. But even if the
Commonwealth were correct that this is what should have been done,
5 dismissal of the appeal would still be unwarranted. When counsel’s negligence
costs an indigent defendant his statutory right of appeal, the proper remedy is
“at least” a reinstated or belated appeal. Moore v. Commonwealth, 199 S.W.3d
132, 139 (Ky. 2006). Jones has consistently sought appellate review, and his
reply brief expressly requests the functional equivalent of belated-appeal relief
in the alternative. Under these circumstances, we would decline to mandate
the empty formality of dismissing this appeal only to permit the same case to
return through a separate belated-appeal procedure.
Turning to the merits, however, in this procedural posture, Jones’s
appeal was not untimely. We decline to hold that Jones forfeited (non-belated)
appellate review of his conviction by failing to file a separate merits appeal
while the trial court itself had reopened sentencing and was actively conducting
further proceedings.
Our holding is narrow. We do not hold that every later amended criminal
judgment restarts the time for appeal. Nor do we decide whether the June 6
docket entry constituted a final judgment for all purposes implicated by the
parties’ resentencing dispute. It is enough to say that, where the trial court
reopened sentencing within the thirty-day period for filing a notice of appeal,
conducted a later sentencing hearing, and then entered the judgment from
which the defendant appealed, a timely appeal from that later judgment may
proceed against both the conviction and the re-sentencing that caused the
delay.
6 III. The Commonwealth’s cross-examination of Jones violated Moss.
Kentucky law has long prohibited forcing one witness to characterize
another witness’s testimony as a lie or otherwise to opine directly on another
witness’s truthfulness. See Moss, 949 S.W.2d at 583; Duncan v.
Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010); Barrett v. Commonwealth, 677
S.W.3d 326, 340–41 (Ky. 2023). The reason is plain. Such questioning invades
the jury’s role as the sole judge of credibility and unfairly places the witness in
a position where his own testimony is made to appear crude, hostile, or
unbelievable simply because he rejects another witness’s account. The Moss
prohibition exists “to prevent a witness from being presented in an unflattering
light from which he could not recover in the eyes of the jury.” Luna v.
Commonwealth, 460 S.W.3d 851, 880 (Ky. 2015).
The Commonwealth argues that no Moss violation occurred because
Jones’s testimony already implied that Wilson was lying, and the prosecutor
was only verbalizing that implication. But factfinders have to sort through
mutually-exclusive stories all the time. It is the charge of the litigants to
provide evidence to persuade the finder of fact that their version of the
underlying events is the correct one. The jury may infer that there is a
contradiction -- i.e. “if X is correct then Y must be incorrect” -- but Moss
forbids compelling the witness to assert the contradiction directly. That a
defendant’s theory necessarily implies that another witness is mistaken or
untruthful does not authorize the prosecutor to compel the defendant to adopt
the formulation that Moss forbids.
7 Notably, even the cases the Commonwealth cites for its argument that
the questions were not even Moss violations, such as Newman v.
Commonwealth, 366 S.W.3d 435, 451 (Ky. 2012), and Parker v. Commonwealth,
482 S.W.3d 394 (Ky. 2016), do not state that no Moss violation occurred. This
Court in Newman found that there was no palpable error in part because of the
nature of the defendant’s defense, but the questions in that case were still
Moss violations. Newman, 366 S.W.3d at 442. And in Parker, we held that a
proposed distinction between being mistaken and lying did not need to be
analyzed, because even if Moss violations occurred, they would not have been
palpable under the conditions of that case. Parker, 482 at 442. Multiple
questions in this case pertained to accusing the witness of lying, not merely of
being mistaken, and so the distinction briefly considered in Parker remains of
no use here.
Turning to the particular questions challenged in the appeal, the first two
challenged questions were direct Moss violations. After asking Jones whether
he had heard Wilson testify that he had bought narcotics from Jones before,
the prosecutor asked, “So he just made that up?” Later, after eliciting that
Jones used methamphetamine and denied selling methamphetamine to Wilson,
the prosecutor asked, “You just happened to have methamphetamine, use
methamphetamine, and then Mr. Wilson is not telling the truth?” Those
questions did not merely illuminate a discrepancy in testimony, or contrast two
irreconcilable accounts. They required Jones to answer in precisely the
forbidden liar-or-truth-teller format. The first question demanded that Jones
8 say Wilson “made that up.” The second demanded that Jones say Wilson was
“not telling the truth.” Both violate Moss.
The third question, viewed in isolation, is closer: after reciting Wilson’s
admissions that he was a felon, had gotten a DUI, and had purchased
narcotics from Jones, the prosecutor asked, “But your testimony today is that
that’s not accurate?” Standing alone, that question might be characterized as a
mere restatement of conflicting evidence, or as an assertion that the other
witness was merely “mistaken” rather than lying (if this Court were of a mind
to draw such a distinction when it comes to Moss violations, as was requested
in Parker). But it did not occur in isolation. It came after the two earlier liar-or-
truth-teller questions and was part of the same short, concentrated cross-
examination. In context, it served the same function. It again forced Jones to
reject Wilson’s account in the prosecutor’s preferred framing rather than
simply allowing the jury to compare the two witnesses’ testimony for itself.
IV. In the circumstances of this trial, the misconduct was palpable.
Because the issue is unpreserved, Jones is entitled to relief only if the
error was palpable under RCr 10.26. A palpable error is one that results in
manifest injustice. In the context of prosecutorial misconduct, the question is
whether the misconduct was so improper, prejudicial, and outcome-significant
that there is a substantial possibility the result would have been different
absent the error. See Brafman v. Commonwealth, 612 S.W.3d 850 (Ky. 2020).
There are four factors a court must consider when determining whether the
misconduct rises to this level: (1) whether the misconduct tended to mislead
9 the jury or prejudice the accused; (2) whether it was isolated or extensive; (3)
whether it was deliberate or accidental; and (4) the strength of the evidence
against the accused. Id., at 861.
We have in multiple cases pointed out that unpreserved Moss violations
have never yet been found to be palpable error. See, e.g., Barrett at 342; Parker
v. Commonwealth, 482 S.W.3d 394, 406 (Ky. 2016). But these sorts of
statements summarizing past findings are not a rule that no Moss violation can
be palpable error. Indeed, how could that be? Palpable error is reviewed on a
case-by-case basis; and if an error is real, then it might turn out to be palpable
under the circumstances of a given case. Moss has long drawn a clear line that
it is error for a prosecutor to force one witness to characterize another as lying
or “not telling the truth.” That line has not become unenforceable merely
because palpable-error relief has previously been denied on the particular facts
before this Court in other cases. To the contrary, the repeated need to identify
Moss violations while withholding relief confirms only that the inquiry remains
case-specific. Meadows does not hold otherwise.
We do not hold that every unpreserved Moss violation warrants reversal.
Most do not; in fact as Meadows correctly pointed out, thus far no case on
which we have ruled has. 2 But we also cannot understand Moss and its
progeny to create a rule of practical impunity. If repeated liar-or-truth-teller
2 Though it is an unpublished Court of Appeals opinion and not binding
precedent per RAP 41(a), Ceraulo v. Commonwealth, No. 2023-CA-0625-MR, 2024 WL 4644782, at *4 (Ky. App. Nov. 1, 2024) demonstrates that Kentucky appellate courts do not treat palpable-error relief for unpreserved Moss errors as categorically unavailable. 10 questions aimed at the central credibility issue in a tightly contested trial could
never amount to palpable error, then the rule announced in Moss is essentially
toothless. We decline to treat it that way.
The Commonwealth proved that Wilson entered Jones’s residence under
surveillance and emerged with methamphetamine. But the Commonwealth did
not prove who sold the methamphetamine to Wilson while he was inside,
unless you believe Wilson’s account (and discount Jones’s). The
Commonwealth’s case against Jones depended on Wilson’s account.
In these circumstances, we have struck upon a case in which Moss
errors were palpable. This was not a case in which the improper questions
touched only a collateral contradiction. Nor was it a case in which abundant
independent proof rendered the witness-to-witness credibility dispute
incidental. The case rested on Wilson. The defense developed multiple facts
from which the jury could question Wilson’s credibility: his DUI arrest, his
probationary status, the apparent controlled substance found in his vehicle,
the absence of charges concerning that substance, the lack of testing of that
substance, and his one-shot role as a confidential informant who worked with
police only in this case. On top of that, Officer Southerland admitted on cross-
examination that police were relying on Wilson for the critical gap during the
unobserved interval inside the residence. The defense did not merely assert
that Wilson was untrustworthy. It gave the jury concrete reasons to scrutinize
him.
11 That is why the Commonwealth’s use of Moss-violating questions created
a substantial possibility that the verdict was affected. When credibility is
central, Moss-violating questions aimed at the defendant are live fodder for
palpable error. By the time the Commonwealth reached its cross-examination
of Jones — the last witness of the case — it had every reason to recognize that
Jones’s credibility attack on Wilson was the central obstacle to conviction. The
case turned on the jury’s assessment of credibility between these two witnesses
regarding the unobserved event inside the residence.
In that moment, rather than simply exposing inconsistencies, making its
best arguments as to why it had the better of the credibility issue during its
closing statement, and letting the jury do its work, the prosecutor resorted to
Moss-violating formulations to cast Jones’s defense in an inaccurately negative
light. This was manifestly unjust in this particular case because the
inaccurately negative light was being cast on the central issue of the case.
In terms of the considerations required for a misconduct analysis in
cases such as Brafman, all four factors weigh towards palpable error in this
case. First, the improper questions prejudiced the accused. The questions went
directly to the one point the jury most needed to assess independently: whether
Wilson should be believed about the identity of the seller. By forcing Jones to
characterize Wilson’s testimony in liar-or-truth-teller terms, the prosecutor
reshaped the conflict into a form that unfairly burdened Jones’s defense. The
jury was not simply invited to decide which witness was more credible. Jones
was made to look as though his defense amounted to nothing more than
12 branding Wilson a liar to save his own skin. In reality there was substantial
evidence to challenge Wilson’s credibility without any testimony from Jones.
The jury must decide that question of credibility, but it must be framed
properly for them to do so. If credibility is the central issue in a case, then a
Moss error is likely to be prejudicial, and it was in this case.
The circumstances also indicate that the improper questions were
deliberate rather than accidental, and that they were not isolated or stray
incidents. The brevity of the exchange does not cut against Jones in this case,
but for him. In some cases, a short exchange suggests an isolated misstep.
Here, the entire examination was short because it was focused. Three of the ten
questions were Moss violations. The prosecutor used a meaningful fraction of a
very brief cross-examination to hammer the precise forbidden theme. The
concentration of the improper questioning underscores the centrality of the
credibility battle, and the Commonwealth’s deliberate focus on that issue. The
Moss questions were neither isolated nor accidental.
Finally, the strength of the evidence also weighs in favor of finding the
errors palpable. The evidence was sufficient to go to the jury, but sufficiency is
not the point. The point is whether the Commonwealth’s proof of the decisive
disputed fact — who sold the methamphetamine inside the residence — was so
strong that the improper questioning could not have mattered. It was not. As
we have observed previously, “the witness who affirms, and the accused who
denies, make an equal balance.” Masters v. Commonwealth, 724 S.W.3d 751,
768 (Ky. 2025) (quoting V Tucker's Blackstone 357 (St. George Tucker ed., The
13 Lawbook Exchange, Ltd. 2011) (1803)). The Commonwealth’s only proof that it
was Jones who sold the drugs in the otherwise unseen transaction was to offer
a confidential informant to contradict Jones’s denial, and then to attack
Jones’s credibility relative to that witness in part by asking Jones Moss-
violating questions.
RCr 10.26 is case-specific. In this case, repeated Moss-violating
questions during a short and highly concentrated cross-examination created a
substantial possibility that the verdict was affected. 3 We therefore conclude
that, in the specific factual context of this case, the misconduct was flagrant
enough to amount to palpable error. Manifest injustice occurred.
V. We do not reach the resentencing issue.
The appellant also argues that the circuit court lacked authority to
increase his sentence from ten years to twenty years after the June 6
proceedings. Because we reverse Jones’s conviction and remand for a new trial,
3 Jones also points to the prosecutor’s closing argument emphasizing that
Wilson and the officers “had no reason to lie.” We do not treat the closing argument as a separate, independent ground for reversal. But it is relevant to the prejudice and misconduct analysis. The problem is not that the Commonwealth argued credibility. Of course it could do so. The problem is that, after using improper questioning to force Jones into the liar-or-truth-teller posture, the Commonwealth then returned in closing to the same ground by inviting the jury to view Wilson and the officers as having “no reason to lie.” In a case where the defense had developed record-based reasons to question Wilson’s motives, reliability, and credibility, and in which the officers by their own admission had nothing to lie about in that they did not witness the disputed transaction, that closing argument brushed aside real credibility concerns the jury was entitled to weigh. The defense did not object to this statement either (as a misrepresentation of the facts in evidence, for instance), and the jury was free to reject this argument by the prosecutor if it found it unpersuasive. But it was much more likely to find it persuasive because of the Moss-violating questions that had been brought to bear against Jones on cross-examination. The closing argument therefore aggravated the prejudice created by the improper cross-examination.
14 we do not decide that resentencing dispute. Nothing in this opinion should be
read as resolving whether the June 6 entry constituted a final judgment for
resentencing-authority purposes, whether the error the court cited in the
resentencing hearing was clerical or judicial in nature, or whether the
sentencing issue would otherwise entitle Jones to relief. We addressed the
June-to-August procedural sequence above only as necessary to address the
Commonwealth’s threshold claim that the conviction-related appeal is
untimely.
VI. Conclusion
For the foregoing reasons, the judgment of the Bath Circuit Court is
reversed, and this matter is remanded for a new trial.
All sitting. Lambert, C.J.; Bisig, Goodwine, Nickell, and Thompson, JJ.,
concur. Keller, J., concurs in result only.
COUNSEL FOR APPELLANT:
Aaron Reed Baker Kathleen K. Schmidt Assistant Public Advocates
COUNSEL FOR APPELLEE:
Russell Coleman Attorney General
J. Grant Burdette Assistant Solicitor General