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RENDERED: AUGUST 20, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0271-MR
RONNY STURGILL APPELLANT
ON APPEAL FROM LETCHER CIRCUIT COURT V. HONORABLE JAMES W. CRAFT, II, JUDGE NOS. 25-CR-00002, 25-CR-00003 & 25-CR-00004
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT AFFIRMING
A jury found Ronny Sturgill guilty of three counts of sexual abuse in the first degree with a victim less than twelve years of age, and three counts of incest with a person who is less than twelve years of age. Sturgill was sentenced to twenty years’ imprisonment and now appeals as a matter of right. KY. CONST. § 110(2)(b).
On appeal, Sturgill alleges that his right to a fair trial was violated because: the trial court improperly allowed prosecutorial inquiries into defense witness communications with counsel; the trial court improperly permitted the Commonwealth to play videos of a witness’ previous testimony in front of the jury; and the trial court improperly ordered Sturgill not to comment on the victim’s lack of composure on the witness stand. Sturgill contends that even if these errors do not warrant reversal in and of themselves, he was denied a fair
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trial because of their cumulative effect. We hold that Sturgill was not denied a fair trial, and we affirm.
I. Background
C.S. 1 is the victim in this case. C.S. is Sturgill’s biological daughter.
C.S. was born in 2008 in South Carolina. She has two brothers, J.S. and F.S. H.S. is C.S.’s mother, and H.S. is married to Sturgill. Sturgill, H.S., C.S., J.S., and F.S. moved to Letcher County, Kentucky, in June 2018. Between June 2018 and December 2018, Sturgill touched C.S.’s genitalia and her breasts. Sturgill would touch C.S. both over and under her clothes. C.S. was forced to touch Sturgill’s penis, and C.S. was forced to put Sturgill’s penis in her mouth. This continued between January 2019 and July 21, 2020. When C.S. was twelve years old, Sturgill told C.S. she was getting too old, and the abuse stopped. During a neurology appointment in 2023, C.S. disclosed the abuse to a doctor.
On January 16, 2025, Sturgill was indicted by a Letcher County grand jury on three counts of sexual abuse in the first degree with a victim less than twelve years of age, and three counts of incest with a person who is less than twelve years of age. The jury found Sturgill guilty on all counts, and he was sentenced to twenty years’ imprisonment pursuant to the jury’s recommendations. Sturgill now appeals.
1 To preserve the victim’s anonymity, we will refer to her and her family members by their respective initials.
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II. Analysis
On appeal, Sturgill alleges that his right to a fair trial was violated because the trial court improperly allowed prosecutorial inquiries into defense witness communications with counsel; the trial court improperly permitted the Commonwealth to play videos of a witness’ previous testimony in front of the jury; and the trial court improperly ordered Sturgill not to comment on the victim’s lack of composure on the witness stand. Sturgill further contends that even if these errors do not warrant reversal in and of themselves, he was denied a fair trial because of their cumulative effect.
A. The Commonwealth did not commit prosecutorial misconduct during its cross-examination of H.S. and J.S.
Sturgill alleges that he was denied his right to a fair trial because the
Commonwealth’s questioning of H.S., his wife, and J.S., his son, about their conversations with defense counsel amounted to prosecutorial misconduct. Specifically, Sturgill argues that under the United States Constitution 2 and the Kentucky Constitution, 3 he has a basic right to present a defense. This includes the right to compel witnesses to attend trial to testify on his behalf. Sturgill alleges that the following line of questioning posed to H.S. penalized him for his counsel exercising his right to interview witnesses:
Commonwealth: Have you helped us in prosecuting this case?
H.S.: I have not been asked to help you all, sir.
Commonwealth: Have you helped the defense?
2 U.S. CONST. amend VI.
3 KY. CONST. § 11.
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H.S.: I have talked to the defense because they were calling me.
Commonwealth: Have you run them documents?
H.S.: Yes, sir.
Commonwealth: Have you run them photographs?
H.S. Yes, sir.
Commonwealth: You met with them multiple times?
H.S.: Yes, sir.
During trial, Sturgill objected to this line of questioning based on his right to present a defense. However, the trial court overruled this objection because the Commonwealth was permitted to question H.S. as to her bias towards the defense. The trial court made clear that the Commonwealth was not allowed to ask H.S. about her discussion with defense counsel or her preparation.
Sturgill further alleges that the following line of questioning to J.S., one of the defendant’s sons, was improper:
Commonwealth: Other than when somebody handed you a subpoena to be here, have you spoken with anybody in my office about your testimony here today?
J.S.: No, I have not.
Commonwealth: Okay. Have you spoken with anybody at that table about your testimony?
J.S.: Yes.
Commonwealth: Yes? Okay. Who have you spoken with?
J.S.: [Defense counsel].
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Commonwealth: Okay. And what did you and [defense counsel] discuss?
J.S.: Just that I was going to give a testimony.
Commonwealth: Okay. Did you talk about what kind of things you were going to talk about?
J.S.: Yes.
Commonwealth: Okay. Can you remember what was discussed?
At trial, Sturgill objected to this line of questioning on the basis of work product and its lack of relevancy. The trial court sustained Sturgill’s objection on the basis that it was not relevant. Sturgill did not request an admonition. Sturgill now asks this Court to reverse his conviction because he contends that the Commonwealth’s questions amounted to prosecutorial misconduct.
In considering an allegation of prosecutorial misconduct, “[i]f the misconduct is objected to, we will reverse on the ground if proof of the defendant’s guilt was not such as to render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury.” Murphy v. Commonwealth, 509 S.W.3d 34, 49 (Ky. 2017) (citing Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). The Commonwealth alleges that Sturgill failed to preserve this issue for error “because ‘merely voicing an objection, without a request for a mistrial or at least for an admonition, is not sufficient to establish error once the objection is sustained.’” Leger v. Commonwealth, 400 S.W.3d 745, 752 (Ky. 2013) (quoting Hayes v. Commonwealth, 698 S.W.2d 827, 829 (Ky. 1985)). We hold that this issue was
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preserved for appeal as it relates to H.S.’s testimony because Sturgill objected to the line of questioning, and the trial court overruled the objection.
“Prosecutorial misconduct is ‘a prosecutor’s improper illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.’” Murphy, 509 S.W.3d at 49 (quoting Commonwealth v. McGorman, 489 S.W.3d 731, 741–42 (Ky. 2016)). “Prosecutorial misconduct may result from a variety of acts, including improper questioning. . . .” Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011). “In considering of an allegation of prosecutorial misconduct, the Court must view that allegation in the context of the overall fairness of the trial.” Murphy, 509 S.W.3d at 49 (citing McGorman, 489 S.W.3d at 742). “To justify reversal, the Commonwealth’s misconduct must be ‘so serious as to render the entire trial fundamentally unfair.’” Id. (quoting Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)).
We hold that the Commonwealth did not engage in prosecutorial misconduct because the questions that it posed to H.S. were not improper. Under KRE 4 611(b), “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Accordingly, the Commonwealth has a right “to introduce before the jury evidence relevant to weight or credibility, including evidence of bias, interest, or prejudice.” KRE 104; see Commonwealth v. Armstrong, 556 S.W.3d 595, 600 (Ky. 2018) (“Two
4 Kentucky Rules of Evidence.
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important methods by which the impeaching party may discredit a witness’s testimony on cross-examination are by introducing the fact that the witness has a prior felony conviction and by ‘revealing possible biases, prejudices, or ulterior motives of the witness as they may relate to issues . . . in the case at hand.’”). Here, the trial court properly concluded that the Commonwealth’s questions were directed toward establishing H.S.’s potential bias in favor of the defense. We reject Sturgill’s argument that this line of questioning suggested that presenting a defense is evidence of guilt. The Commonwealth was entitled to explore potential bias before the jury. This is particularly true considering that H.S. is Sturgill’s wife and was testifying on his behalf. Under these circumstances, we cannot conclude that the Commonwealth’s line of questioning was improper. Therefore, we decline to find prosecutorial misconduct.
Next, we hold that this issue was not preserved for error as it relates to J.S.’s testimony because the trial court sustained Sturgill’s objection, and Sturgill did not request a mistrial or an admonition. However, Sturgill requests palpable error review. 5 When the issue of prosecutorial misconduct is unpreserved, “we will reverse only if the conduct was both flagrant and constitutes palpable error resulting in manifest injustice.” Barrett v. Commonwealth, 677 S.W.3d 326, 333–34 (Ky. 2023) (citing RCr 10.26). “A palpable error which affects the substantial rights of a party may be considered
5 Kentucky Rules of Criminal Procedure (RCr) 10.26.
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. . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon determination that manifest injustice has resulted from the error.” RCr 10.26. “When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
We hold that the Commonwealth’s questioning did not amount to palpable error. Sturgill objected before the witness answered the challenged question, and the trial court properly sustained the objection. Sturgill neither requested an admonition nor moved for a mistrial. Under these circumstances, we cannot conclude that the Commonwealth’s questioning resulted in manifest injustice. Accordingly, we find no palpable error.
Sturgill requests that this Court find prosecutorial misconduct on the basis relied upon by this Court in Wischer v. Commonwealth, No. 2023-SC- 0158-MR, 2025 WL 1197950, at *1 (Ky. Apr. 24, 2025). We decline to do so. In Wischer, we held that it was improper that “the Commonwealth explicitly equated Wischer’s attempt to obtain legal counsel with evidence of guilt.” Id. at *5. During cross-examination of Wischer, “the prosecutor implied that Wischer used his pre-trial meetings with counsel to fabricate a story.” Id. at *2. Furthermore, during closing argument, the Commonwealth stated the following:
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And you can see the panic right? Call to Dad. Call to Dad.
Defense attorney. Dad. Defense Attorney. Dad. Defense Attorney. Dad. That's not the activity of an innocent person.
That's the activity of someone starting to build a defense. Because he already knows what the allegations are going to be because he was present when it happened. Because he did it. He's telling you he's guilty without telling you he's guilty. All you have to do is listen.
Id. at *3. In holding the Commonwealth’s actions improper, we cited Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990), which states: “A prosecutor may not imply that an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment, implies guilt.” Id.
This case is distinguishable from Wischer. Here, the Commonwealth questioned the wife and son regarding their cooperation with defense counsel to explore potential bias and assess their credibility. The questioning did not suggest that Sturgill was guilty for exercising his right to seek counsel. Instead, it was directed solely at their credibility and potential bias.
Furthermore, Sturgill requests that this Court find prosecutorial misconduct on the basis relied upon by the Fifth Circuit in United States v. McDonald, 620 F.2d 559 (5th Cir. 1980). We decline to do so. In McDonald, the Fifth Circuit held that the defendant’s Sixth Amendment right to counsel was violated when the prosecutor, during closing argument, suggested defense counsel facilitated the destruction of evidence by being present during a search of the defendant’s home. Id. Here, however, the Commonwealth’s question, which was directed at testing the bias of defense witnesses, does not constitute
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error and does not rise to the level of a constitutional violation as seen in McDonald.
We likewise reject Sturgill’s argument that the Commonwealth engaged in flagrant misconduct. Sturgill contends that the Commonwealth’s questioning of the two witnesses, considered collectively, amounted to flagrant misconduct. We disagree. As discussed above, the Commonwealth’s line of questioning to the wife was not improper. Moreover, Sturgill has failed to establish error arising from the line of questioning to the son. Absent error, there can be no finding of flagrant misconduct.
In the alternative, Sturgill asks that we reverse because all three factors utilized in Matheney v. Commonwealth are present. 191 S.W.3d 599, 606 (Ky. 2006) (“[W]e reverse for prosecutorial misconduct in a closing argument only if the misconduct is ‘flagrant’ or if each of the following three conditions is satisfied: (1) Proof of defendant’s guilt is not overwhelming; (2) Defense counsel objected; and (3) The trial court failed to cure the error with a sufficient admonishment to the jury.”). First, we question whether the three-prong test extends beyond claims of prosecutorial misconduct occurring during closing argument as each case applying the three-prong test has done so only in that context. Second, more recent case law has addressed what a defendant must establish to prevail on a claim of prosecutorial misconduct where the alleged misconduct was objected to at trial, and it does not strictly adhere to the three- prong test. Barrett, 677 S.W.3d at 332 (“If the misconduct is objected to, we will reverse on that ground if proof of the defendant’s guilt was not such as to
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render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury.”). Regardless, each test requires a finding of prosecutorial misconduct. We find no such misconduct. For these reasons, we affirm.
B. Any error that resulted from the Commonwealth’s failure to lay a proper foundation does not amount to palpable error.
Sturgill alleges that the trial court abused its discretion by allowing the
Commonwealth to play a video of H.S.’s previous sworn testimony in view of the jury because it was improper under KRE 612 6 and KRE 613. 7 H.S.’s testimony on cross-examination went as follows:
6 KRE 612 states:
Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.
7 KRE 613(a) states:
Examining witness concerning prior statement. Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it. The court may allow such evidence to be introduced when it is impossible to comply with this rule because of the absence at the trial or hearing of the witness sought to be contradicted, and when the court finds that the impeaching party has acted in good faith.
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Commonwealth: [H.S.], I am going to ask you a question that you have already heard before. You were asked if everything that C.S. testified to could be true and everything you testified to could be true at the same time, and your answer was “yes,” wasn’t it?
H.S.: I don’t even know when that was asked, sir.
Commonwealth: Would you like to listen to your testimony and see it on video?
H.S.: I mean, I guess it’s possible I said that. I mean, I don’t remember being asked that.
Commonwealth: Would it refresh your recollection if you watched yourself on a color video hearing that question and answering it?
H.S.: I mean, if it’s in the court records, I’ll take your word for it.
Commonwealth: I don’t want to take my word for it. I want to take your word for it. Did you say that and was that your answer?
H.S.: I don’t know, sir. I don’t remember being asked that question.
Commonwealth: Judge, can we turn the TV on?
At this time, the trial court asked counsel to approach the bench. Sturgill argued that the video must be played outside of the jury’s presence to properly refresh a witness’ recollection. The Commonwealth argued it was proper to play the video in front of the jury because it was prior sworn testimony, and Sturgill responded that H.S.’s response was satisfactory. The trial court overruled Sturgill’s objection because it found that H.S.’s response was an “equivocated answer.” The video was played in front of the jury. This video showed H.S.’s testimony at an adjudication hearing in Letcher District Court
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from August 29, 2023, regarding the same allegations. H.S. was asked: “Isn’t it true that everything [C.S.] testified could be true and everything that you testified could be true at the same time?” and H.S. answered, “Yes, ma’am.”
On appeal, Sturgill contends that playing the video in front of the jury was improper under KRE 612 because the video could only be used to refresh H.S.’s recollection, but it could not be played in front of the jury. This issue is preserved for appeal because Sturgill objected to the introduction of the video on the basis that it should not be played for the jury if it is used to refresh H.S.’s recollection. See Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971). Under KRE 612, a writing can be used to refresh a witness’s memory, and
if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
KRE 612. Accordingly, “[i]t is appropriate to use a tape recording of a conversation (and ostensibly also a video recording) to refresh a witness’s recollection.” Alderson v. Commonwealth, 670 S.W.3d 884, 901 (Ky. 2023) (citing Brock v. Commonwealth, 947 S.W.2d 24, 30 (Ky. 1997)). “When a witness refreshes her memory under KRE 612, the testimony elicited thereafter ‘is the product of the refreshed memory, not the writing or recording used to refresh it.’ As a result, the document or recording itself is not admissible into evidence.” Id. (quoting Martin v. Commonwealth, 456 S.W.3d 1, 15 (Ky. 2015)). Here, however, the record reflects that the trial court allowed the video to be
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played in front of the jury because it was prior sworn testimony of the witness, and the witness gave an “unequivocal” response about her prior testimony while testifying at trial. Therefore, we do not find that the trial court erred under KRE 612 because the trial court permitted the video to be played under KRE 801A(a)(1).
Sturgill further alleges that the video was improperly played in front of the jury under KRE 801A(a)(1) because proper foundation was not laid as required by KRE 613. Sturgill contends that this issue was preserved for appeal by objection. However, we hold that this issue was not preserved for appeal because Sturgill failed to specifically indicate to the trial court that a proper foundation had not been laid under KRE 613. Bell, 473 S.W.2d at 821 (“[T]he appellant has the duty to make timely objections and if he wants to preserve his issues for review by this court the objections must be specific enough to indicate to the trial court and this court what it is he is objecting to.”). Sturgill’s objection was directed at the Commonwealth’s failure to properly refresh H.S.’s memory under KRE 612, and he argued that it was improper to play the video in the presence of the jury under this rule. The Commonwealth then argued that it was proper for the video to be played in the presence of the jury under KRE 801A(a)(1) by arguing that the video was H.S.’s prior sworn testimony. Sturgill only argued that H.S.’s current response was sufficient, and the trial court held that her response was “unequivocal.” Sturgill did not object on the basis that proper foundation had not been laid under KRE 613. Therefore, this issue was not preserved for appeal.
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However, Sturgill requests palpable error review. Under KRE 801A(a)(1),
[a] statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is . . .
inconsistent with the declarant’s testimony[.]
Under KRE 613,
[b]efore other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them;
and, if it be in writing, it must be shown to the witness, with opportunity to explain it.
Sturgill contends that proper foundation was not laid before the Commonwealth played the video in view of the jury. We hold that proper foundation was not laid because the Commonwealth failed to strictly comply with KRE 613. Noel v. Commonwealth, 76 S.W.3d 923, 930 (Ky. 2002) (“Even our more modern cases have consistently required strict compliance with the foundation requirements of . . . KRE 613(a).”). However, any error that resulted from the Commonwealth’s failure to lay a proper foundation does not amount to palpable error. “Palpable error will compel us to reverse only where the error substantially affects the rights of the defendant in a way so obvious and serious that we will find there to be manifest injustice.” Brafman v. Commonwealth, 612 S.W.3d 850, 857 (Ky. 2020). Manifest injustice requires a showing of the “probability of a different result of error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Because the evidence admitted
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under KRE 801A(a)(1) had limited evidentiary value, and it would otherwise have been deemed harmless had the issue been properly preserved, 8 we do not find that the mere failure to lay a proper foundation constitutes palpable error. Therefore, we affirm.
C. The trial court did not commit reversible error when it ordered Sturgill not to comment on C.S.’s lack of composure on the witness stand.
During C.S.’s testimony, she became quiet and unresponsive when asked
to describe the sexual abuse. Therefore, the trial court explained to C.S. that she needed to speak into the microphone during her testimony. Subsequently, C.S. was asked more questions regarding the sexual abuse and she took long pauses before answering. C.S. testified that she did not want to answer the questions out loud because they were embarrassing. She continued to be quiet and unresponsive. At this point, the trial court decided to dismiss the jury so that C.S. could regain her composure and continue her testimony. Before C.S. began to testify again, the trial court admonished defense counsel not to cross- examine C.S. regarding her need to regain her composure. The trial court stated: “This hasn’t really become an issue yet, but on cross-examination, I don’t want you all to comment on [C.S.] having to regain her composure.” Defense counsel agreed, and C.S.’s testimony continued.
8 Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010) (“[P]reserved
evidentiary and other non-constitutional errors will be deemed harmless . . . if we can say with fair assurance that the judgment was not substantially swayed by the error.”).
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On appeal, Sturgill alleges that it was improper for the trial court to constrain defense counsel from commenting on C.S.’s lack of composure on the witness stand. Sturgill argues that defense counsel should have been able to comment on the following:
In the case sub judice, the trial court, without either party requesting a recess and with a question still pending from the Commonwealth to C.S. on direct examination, ordered a recess.
The recess followed a prolonged period in which C.S. repeatedly froze up and did not supply a response to several of the Commonwealth’s questions.
Two periods of silence last roughly 38 seconds and 45 seconds, respectively, before the Commonwealth interjected. The questions pertained to what statements, if any, that [Sturgill] made to C.S.
during the alleged sexual encounters.
He argues that review is appropriate despite his failure to object because the trial court issued the instruction sua sponte, and therefore, he had no opportunity to object.
In order to preserve an issue for appeal, “the appellant has the duty to make timely objections” which “must be specific enough to indicate to the trial court and this court what it is he is objecting to.” Bell, 473 S.W.2d at 821. RCr 9.22 states: “[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice that party.” Here, Sturgill had an opportunity to object to the trial court’s sua sponte order. Before defense counsel cross-examined C.S., the trial court informed defense counsel that they were not to question C.S. regarding the need to regain her composure. When the trial court issued this admonition during the bench conference, Sturgill had an opportunity to object and
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preserve the issue for appellate review. See Clay v. Commonwealth, 291 S.W.3d 210, 220 (Ky. 2008) (“Perhaps there was not enough time to object before judicial notice was taken, but this fact does affect the contemporaneous objection requirement of RCr 9.22. Appellant still could have—and was required to—object after judicial notice was taken in order to preserve this error for appeal.”). Therefore, this issue was not preserved for appeal.
Sturgill requests palpable error review. We find that there was no error in the trial court’s instruction that restricted defense counsel from cross- examining C.S. about having to regain her composure. The trial court’s restriction was narrow and did not materially restrict defense counsel’s ability to cross-examine C.S. Defense counsel remained free to question the witness regarding the substance of her allegations, including matters she was unable to articulate or answer. Thus, despite the court’s limited restriction, the jury was still able to assess C.S.’s credibility through her testimony and responses during cross-examination. We hold that the trial court did not commit error. Therefore, we affirm.
Lastly, we reject Sturgill’s claim of cumulative error. Cumulative error is “the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Holding that there were no errors, whether considered individually or collectively, there was a fundamentally fair trial. Therefore, we affirm.
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III. Conclusion
In consideration of each issue individually and cumulatively, we hold that Sturgill was not denied a fair trial. For the reasons stated herein, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
James R. Tanner Hesterberg Hesterberg Law Firm PLLC
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General