Billy Jo Faughn v. Commonwealth of Kentucky

                                                    RENDERED: JUNE 13, 2024
                                                           TO BE PUBLISHED



               Supreme Court of Kentucky
                                  2023-SC-0094-MR


BILLY JO FAUGHN                                                      APPELLANT


                  ON APPEAL FROM TODD CIRCUIT COURT
V.              HONORABLE JOE W. HENDRICKS, JR., JUDGE
                            NO. 20-CR-00069


COMMONWEALTH OF KENTUCKY                                               APPELLEE


          OPINION OF THE COURT BY CHIEF JUSTICE VANMETER

                                    AFFIRMING

      Billy Jo Faughn appeals as a matter of right 1 from a Todd Circuit Court

judgment sentencing him to life imprisonment for wanton murder and

operating a motor vehicle under the influence of methamphetamine. On

appeal, Faughn raises four claims of error, none of which merit reversal. We

therefore affirm the judgment of the Todd Circuit Court in all respects.

                                   BACKGROUND

      The facts underlying this case stem from a tragic automobile collision

that occurred on July 29, 2020. Faughn was in Hopkinsville, Kentucky to

spend time with his family after the death of his father. After leaving the

funeral home early on the day of the funeral, Faughn went to the home of



      1 KY. CONST. § 110(2)(b).
Gerald Harper, an individual known to local law enforcement to be a

methamphetamine dealer. Four hours after leaving the funeral, Faughn was

seen by Erica Skipworth traveling South on Blue and Gray Park Road.

Skipworth, who was traveling the opposite direction, observed Faughn’s vehicle

traveling at a high rate of speed and veering into her lane of travel. As she got

closer, she also noticed Faughn was slumped over the steering wheel.

Skipworth turned around to follow Faughn’s vehicle and called 911.

      At the same time Faughn was seen travelling erratically, Sarah Barrow

was outside tending to flowers in the front yard of her home off Blue and Gray

Park Road. As Faughn neared Barrow’s home, his vehicle left the roadway,

traveled across a driveway, was briefly airborne, continued through a

neighbor’s yard, sideswiped a tree, ran over a fence post and bush, went

airborne again, and sideswiped another tree. Barrow noticed Faughn’s vehicle

careening in her direction and retreated to her garage to seek shelter.

Unfortunately, Faughn’s vehicle continued in the direction of the garage.

Faughn’s vehicle struck Barrow and carried her through the sidewall of her

garage, bringing her to rest approximately 39 feet from where the vehicle struck

her. Barrow died from the injuries she sustained.

      Detective Richard Carroll of the Kentucky State Police arrived at the

scene shortly after the collision. Carroll spoke to Faughn and observed that

Faughn appeared to be under the influence. At Carroll’s request, Faughn

performed Standard Field Sobriety Tests (“SFST”) and exhibited signs of

impairment in nearly every one. Faughn consented to a blood test. Later

                                        2
examination of the blood showed the presence of methamphetamine in

Faughn’s system. As a result of the collision, the Todd County Grand Jury

indicted Faughn for wanton murder, operating a motor vehicle under the

influence of methamphetamine, and possession of marijuana. Following a

four-day trial, a jury found Faughn guilty of wanton murder and operating a

motor vehicle under the influence of methamphetamine. Faughn was acquitted

of possession of marijuana. The jury recommended a sentence of life

imprisonment, which the circuit court imposed. Faughn now appeals as a

matter of right.

                                     ANALYSIS

      Faughn raises three primary arguments for reversal of his sentence: (1)

error from allowing some of the Commonwealth’s witnesses to testify by Zoom;

(2) prosecutorial misconduct; and (3) error as a result of admitting only a

portion of a bodycam video. Faughn further argues that even if none of these

three alleged errors merit reversal, he is still entitled to a new trial because of

the cumulative effect of those errors. We address each contention in turn.

 I.   Remote Testimony was Harmless Error.

      Faughn first argues that the circuit court erred by allowing two of the

Commonwealth’s witnesses to testify by Zoom, a software platform that

facilitates videophonic communication. Faughn contends that allowing the

witnesses to testify remotely deprived him of his right to confront the witnesses

preserved under the Sixth Amendment of the U.S. Constitution and Section 11

of the Kentucky Constitution.

                                          3
      At trial, the Commonwealth sought to introduce evidence of the amount

of methamphetamine present in Faughn’s blood at the time of the collision.

The Kentucky State Police Lab can determine the presence of a controlled

substance in a blood sample but lacks facilities to quantify the amount of a

drug in a person’s blood. To remedy this issue, the sample was sent to a lab in

Pennsylvania for analysis. Prior to trial, the Commonwealth moved to permit

several individuals from the Pennsylvania lab to testify remotely, although

ultimately only one testified at trial. The Commonwealth further moved to

permit Mike Ward, a toxicologist at the University of Kentucky, to testify

remotely.

      As justification for their remote testimony, the Commonwealth indicated

that allowing the lab employees testify remotely would save the state

approximately $10,000 to $15,000 in travel and accommodation costs. As to

Ward, the Commonwealth stated that because Ward is a professor at UK with

an active teaching load, requiring him to travel to Todd County would force him

to cancel some of his classes. Allowing Ward to testify remotely would vitiate

that concern. The circuit court permitted Ward and any Pennsylvania lab

employees to testify remotely.

      This Court has recently addressed the question of remote appearances

by witnesses in a criminal case in two opinions, Campbell v. Commonwealth,

671 S.W.3d 153 (Ky. 2023), and Spalding v. Commonwealth, 671 S.W.3d 693

(Ky. 2023). In those opinions, we expressed our skepticism as to the




                                        4
continuing validity of the U.S. Supreme Court’s opinion in Maryland v. Craig 2

in light of the demise of the balancing test set forth in Ohio v. Roberts, 3 which

served as the analytical foundation of Craig. Despite skepticism we applied the

Craig framework to an alleged confrontation clause error. Like Spalding, we

again see no need to depart from the Craig analysis in the present case.

      Pursuant to Craig, a defendant’s right of confrontation is balanced

against the competing public policy interests set forth by the Commonwealth.

Campbell, 671 S.W.3d at 158-59 (citing Craig, 497 U.S. at 855). “‘[T]he

Confrontation Clause reflects a preference for face-to-face confrontation at

trial,’ a preference that ‘must occasionally give way to considerations of public

policy and the necessities of the case[.]’” Craig, 497 U.S. at 849 (quoting

Roberts, 448 U.S. at 63; Mattox v. United States, 156 U.S. 237, 243 (1895))

(citation omitted) (emphasis in original). See also Sparkman v. Commonwealth,

250 S.W.3d 667, 669 (Ky. 2008) (“[W]hile face-to-face confrontation is

preferred, the primary right secured by the Confrontation Clause is that of

cross-examination. Accordingly, the right to confront is not absolute and may

be limited to accommodate legitimate competing interests.” (citing Roberts, 448

U.S. at 63; Chambers v. Mississippi, 410 U.S. 284, 295 (1973)) (footnote

omitted). In addition to the presence of an important public policy underlying

the request, remote testimony can only be allowed “where the reliability of the

testimony is otherwise assured.” Craig, 497 U.S. at 850.


      2 497 U.S. 836 (1990).

      3 448 U.S. 56 (1980) (overruled by Crawford v. Washington, 541 U.S. 36 (2004)).



                                         5
      The reasons proffered by the Commonwealth to explain why their

witnesses needed to testify remotely fall well short of public policies that could

outweigh Faughn’s constitutional right to confront those witnesses. While we

applaud the Commonwealth for their commitment to the financial well-being of

Kentucky’s prosecutorial system, a savings of ten to fifteen-thousand dollars

cannot outweigh a defendant’s constitutional rights. Similarly, while we can

appreciate Ward’s reluctance to cancel his classes and of the Commonwealth’s

efforts to accommodate Ward and his students, the relatively minor

inconvenience to Ward does not in any way approach the gravity needed to

deprive Faughn of his right to confront Ward in person. See Campbell, 617

S.W.3d at 161 (“Thus, by allowing [Commonwealth’s witness] to testify via

Zoom as a convenience to him, the trial court erred[]”). As noted by Faughn, if

Ward wishes to engage in the business of testifying as an expert witness, he

should be prepared to forego other obligations in pursuit of that endeavor.

Accordingly, the circuit court erred in allowing the Pennsylvania lab employee

and Ward to testify remotely.

      However, finding a confrontation clause error is not, in itself, sufficient to

justify reversal. Rather, “we must decide ‘whether there is a reasonable

possibility that the evidence complained of might have contributed to the

conviction . . . or put otherwise, that error was harmless beyond a reasonable

doubt.’” Campbell, 671 S.W.3d at 161-62 (quoting Talbott v. Commonwealth,

968 S.W.2d 76, 84 (Ky. 1998)). “An assessment of harmlessness cannot

include consideration of whether the witness’ testimony would have been

                                         6
unchanged, or the jury's assessment unaltered, had there been confrontation;

such an inquiry would obviously involve pure speculation, and harmlessness

must therefore be determined on the basis of the remaining evidence.” Coy v.

Iowa, 487 U.S. 1012, 1021-22 (1988).

      Faughn was convicted of wanton murder. KRS 507.020 provides, in

relevant part, “A person is guilty of murder when: . . . (b) Including, but not

limited to, the operation of a motor vehicle under circumstances manifesting

extreme indifference to human life, he wantonly engages in conduct which

creates a grave risk of death to another person and thereby causes the death of

another person.” No party disputes that Faughn operated a motor vehicle and

as a result of his doing so he caused the death of another person. Primarily,

the dispute at trial revolved around whether or not Faughn did so wantonly.

Our statutes define “wantonly” as follows:

      A person acts wantonly with respect to a result or to a circumstance
      described by a statute defining an offense when he is aware of and
      consciously disregards a substantial and unjustifiable risk that the
      result will occur or that the circumstance exists. The risk must be
      of such nature and degree that disregard thereof constitutes a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the situation. A person who creates such a risk
      but is unaware thereof solely by reason of voluntary intoxication also
      acts wantonly with respect thereto.

KRS 501.020(3).

      In this instance, we agree with the Commonwealth that the

quantification of the amount of methamphetamine in Faughn’s blood was

cumulative of other properly admitted testimony. As previously noted,

Skipworth testified to Faughn’s high rate of speed and erratic driving.

                                         7
Detective Carrol testified that Faughn’s eyelids were droopy, his speech slurred,

his statements incoherent, and that Faughn failed his SFSTs—all indicative to

him that Faughn was under the influence of some substance. Although

Kentucky is unable to quantify the amount of methamphetamine in an

individual’s blood, our labs can detect its presence. Bailey Gill of the Kentucky

State Police Lab was able to do just that and confirmed the presence of

methamphetamine in Faughn’s blood at the time of the accident. Additional

evidence showing that the accident could not have been caused by a tire

blowout—one explanation Faughn provided—served to underscore that

Faughn’s vehicle leaving the road, travelling some 454 feet, and striking and

killing Barrow was caused by Faughn’s use of methamphetamine prior to

operating his vehicle. The evidence presented by Pennsylvania lab and Ward

quantified the amount of methamphetamine and explained more specifically

how that amount would have affected Faughn, but merely reiterated to the jury

a conclusion it could have reached from the other evidence: Faughn acted

wantonly by operating a motor vehicle while high on methamphetamine.

Accordingly, although the circuit court erred in allowing the lab employee and

Ward to testify remotely, that error was harmless beyond a reasonable doubt. 4



      4 Prior to the availability of chemical tests, Kentucky affirmed convictions for

operating a motor vehicle in such a dangerous and careless manner that such
operation led to the death of another. See, e.g., Dunn v. Commonwealth, 287 Ky. 622,
154, S.W.2d 707 (1941) (“[W]hen that evidence. . . is coupled with the straightforward
testimony of several Commonwealth witnesses that Dunn was drunk or drinking and
that whiskey was found in his car, we are forced to the conclusion that the verdict
must be sustained[]”); Newcomb v. Commonwealth, 276 Ky. 362, 124 S.W.2d 486
(1939) (“The conditions may be such that one knows or should know that his conduct
is reasonably calculated to injure or kill another. . ., and if under those conditions one
                                            8
 II.   The Commonwealth did not Engage in Flagrant Misconduct.

       Faughn next directs us to several statements made by the

Commonwealth during closing arguments that Faughn contends constitute

prosecutorial misconduct. Because Faughn failed to preserve a claim of error

as to any of the occurrences, we will review each for palpable error. RCr 5

10.26. Under RCr 10.26, we will reverse only,

       if the error is both palpable and affects the substantial rights of a
       party to such a degree that it can be determined manifest injustice
       resulted from the error. For error to be palpable, it must be easily
       perceptible, plain, obvious and readily noticeable. The rule's
       requirement of manifest injustice requires showing . . . [a]
       probability of a different result or error so fundamental as to
       threaten a defendant's entitlement to due process of law. Or, as
       stated differently, a palpable error is where the defect in the
       proceeding was shocking or jurisprudentially intolerable.
       Ultimately, [m]anifest injustice is found if the error seriously affected
       the fairness, integrity, or public reputation of the proceeding.

Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014) (internal citations

and quotation marks omitted) (alterations in original).

       Regarding what constitutes prosecutorial misconduct during closing

arguments,

       This Court has repeatedly held that a prosecutor is permitted wide
       latitude during closing arguments and is entitled to draw reasonable
       inferences from the evidence. A prosecutor may comment on tactics,
       may comment on evidence, and may comment as to the falsity of a
       defense position. While the prosecutor has a duty to confine his or
       her argument to the facts in evidence, the prosecutor is entitled to
       draw reasonable inferences from the evidence, make reasonable
       comment upon the evidence and make a reasonable argument in
       response to matters brought up by the defendant.

operates an automobile with such a high degree of carelessness he is chargeable in a
criminal prosecution with the natural and reasonable consequences of his conduct[]”).
       5 Kentucky Rule of Criminal Procedure.



                                          9
Driver v. Commonwealth, 361 S.W.3d 877, 889 (Ky. 2012) (internal citations

and quotation marks omitted). “When reviewing claims of prosecutorial

misconduct under our palpable error standard, ‘we must focus on the overall

fairness of the trial and may reverse only if the prosecutorial misconduct was

so improper, prejudicial, and egregious as to have undermined the overall

fairness of the proceedings.’” James v. Commonwealth, 681 S.W.3d 60, 74 (Ky.

2023) (quoting Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky. 2013)).

With these principles in mind, we address each of Faughn’s misconduct claims

in turn.

   a. No error in commenting on absence of a medical episode.

      Faughn first argues that the Commonwealth committed misconduct in

its discussion of Faughn’s defense that the accident was the result of a medical

episode that caused him to lose control of his vehicle. During its closing

argument the Commonwealth commented on the occurrence, or lack thereof, of

a medical episode on a handful of occasions. First, while addressing why

Faughn did not claim to have had a medical episode during his initial

encounter with the police, the Commonwealth stated, “Another thing to ask

yourself is, why lie? If you’re the Defendant [] and you have had some sort of

medical episode—of which there’s zero evidence, zero—if something happened

and you blacked out, why wouldn’t you say that?” Later, discussing Faughn’s

medical episode defense, the Commonwealth said,

      [Faughn’s attorney] stands here in front of you and he wants to plant
      reasonable doubt, he wants to plant these seeds in your mind to
      make you think that Mr. Faughn, what he did wasn’t as bad as we
                                       10
      all know it was. And with no medical evidence he throws out
      acronyms like TIA [transient-ischemic attack]. No medical evidence
      whatsoever. And the only discussion that came up with whatever
      that is seems to be something that comes on from being a meth
      addict. Still a result of a choice that Mr. Faughn made.

The Commonwealth’s argument about the absence of medical proof that

Faughn suffered a medical episode was not prosecutorial misconduct. The

Commonwealth was correct that no witness testified that Faughn experienced a

medical event that led to his losing control of the vehicle. Where a medical

episode was addressed, the evidence presented was either speculation by a lay

witness 6 or discussed as a potential result of methamphetamine use. 7 In

neither case was a witness testifying that Faughn had indeed suffered a

medical episode (aside from one secondary to Faughn’s methamphetamine use

that day) that led to the crash. The Commonwealth’s argument to the jury that

no evidence was offered to prove a medical episode caused the crash was well

within the latitude permitted for prosecutors during closing arguments.

Accordingly, the statements were not misconduct.

   b. No error in describing Gerald Harper as a drug dealer.

      Next, we address whether the Commonwealth committed misconduct in

describing Harper as a drug dealer. During its closing the Commonwealth told

the jury that Faughn was known to have left the house of a “drug dealer” in




      6 When Skipworth saw Faughn slumped over the steering wheel, she believed in

could be the result of a medical emergency.
      7 Ward, the Commonwealth’s toxicologist, testified on cross examination that

methamphetamine use can cause vasoconstrictive disease which can lead to stroke or
heart attack.

                                         11
reference to Harper’s home, prior to the crash. Later, the Commonwealth

described Harper to the jury as “a drug dealer—a meth dealer.” Faughn argues

that because the Commonwealth never introduced evidence of a conviction of

Harper for drug trafficking, those statements were improper.

      Faughn is correct that the Commonwealth never introduced concrete

proof that Harper trafficked methamphetamine from his home. However, the

Commonwealth did provide the testimony of Detective Carroll who informed the

jury he was aware of Harper from “prior narcotics charges, trafficking,

possessions, that type of stuff.” Further, testimony from Faughn’s mother

indicated that Faughn was not under the influence of narcotics that morning.

Given that Faughn was undeniably under the influence of methamphetamine

at the time of the crash (after he left Harper’s home) and Harper’s reputation

among law enforcement for drug activity, the Commonwealth made the

reasonable inference that Harper had indeed sold methamphetamine to

Faughn, making Harper, colloquially speaking, a dealer of that substance.

Because “the prosecutor is entitled to draw reasonable inferences from the

evidence”, Driver, 361 S.W.3d at 889, the Commonwealth committed no error

in making that statement.

   c. No error in describing reckless homicide as a slap on the wrist.

      Next Faughn argues fault with the Commonwealth’s portrayal of reckless

homicide as leading only to a “slap on the wrist” for what occurred. This

comment was made in response to Faughn’s argument that Faughn’s




                                       12
methamphetamine use made it difficult for him to appreciate the danger of

operating a vehicle. The Commonwealth contended:

      He was at Gerald Harper’s house and he has four hours to get high.
      Do you need to know how high he got? Do you need to know how
      much he smoked? Do you need to know exactly how he was feeling?
      Do you need to know if he was in euphoria or if he was in crash? Do
      you need to know what his metabolism is? Do you need to know
      what he did for the days leading up to that? No. There’s no question
      he was under the influence of methamphetamine. And what
      [Faughn] is asking you to do is say, “he was high and what he did
      was bad, but it wasn’t that bad. Just reckless. Let’s just slap him
      on the wrist for killing somebody.”

The Commonwealth made later references to lesser charges in much the same

manner, as a “slap” or “smack” on the wrist.

      In Norton v. Commonwealth, 37 S.W.3d 750, 753 (Ky. 2001), we

reiterated, “that sentencing issues must not be raised prior to the penalty

phase of trial as a means to impermissibly influence the jury to convict based

on the desired penalty rather than on the elements of each given offense.”

However, we also explained that this prohibition is malleable based on the

context of statements. Id. Where, as in Norton, the defense strategy was to

admit most of the underlying facts but to seek conviction for a lesser charge,

the Commonwealth was permitted to discuss sentencing in its closing

argument. Id.

      Here, we are presented with a situation that does not run afoul of this

rule. In his closing statement, Faughn argued in part that he was guilty only of

reckless homicide because he failed to perceive the danger of his

methamphetamine use. As a result, the Commonwealth was entitled to

comment upon why Faughn would be willing to admit some degree of guilt. In
                                       13
doing so the Commonwealth did not delve into the sentencing implications of

the lesser charges, indicating only that they would represent a “slap on the

wrist” in light of the Commonwealth’s theory of the case. While this comment

undoubtedly raised the sentencing in the minds of the jury, and presents a

close question for the court, we hold that in light of Faughn’s complementary

argument and the vagueness of the Commonwealth’s statements, the

Commonwealth did not commit misconduct in making those comments.

   d. No error in commenting on Faughn’s desire for a jury trial.

      Faughn’s next claim of prosecutorial misconduct arises from comments

the Commonwealth made that included a passing reference to Faughn’s

invocation of his right to a jury trial. In its closing, the Commonwealth argued:

      If only he had stopped using. If only for one day. If only he had
      stayed at the funeral. If only he’d gone to the cemetery to bury his
      own father, with his family, with his daughter, with his
      grandchildren, with his mother, and his sisters. If only. If he had
      done that, then Mrs. Barrow would have finished the yard work. She
      would have gone to church, and tomorrow she’d be celebrating her
      husband who served this country, so people like Mr. Faughn can
      drive around and exercise freedom and come in here and demand a
      jury made up of his peers.

      The Commonwealth is prohibited from commenting on the valid

invocation of a constitutional right. See Griffin v. California, 380 U.S. 609, 614

(1965) (prohibiting comment on defendant’s right to remain silent);

Commonwealth v. McCarthy, 628 S.W.3d 18, 36 (Ky. 2021) (prohibiting proof of

defendant’s refusal to warrantless search and seizure). Our caselaw contains a

dearth of opinion touching upon prosecutor’s comment on a defendant’s

exercise of his or her right to trial by jury, but in Hodge v. Commonwealth,

                                        14
2019-SC-000159, 2020 WL 2091819 at *7 (Ky. April 30, 2020), we found the

Commonwealth’s statement that a defendant sought a jury trial in order to

“game the system” to be misconduct.

      Taken in context, we hold the Commonwealth’s mention of Faughn’s

invocation of his jury right not to be a comment upon that invocation. As with

the “slap on the wrist” statements, this comment presents a close call, but we

find it to be distinguishable from Hodge. In Hodge, the reference to the

defendant’s invocation of a jury trial as “gam[ing] the system” was made in

relation to his co-defendant’s choice to take responsibility for their role in the

crime. Id. Accordingly we found it improper for the Commonwealth to both

“comment on Hodge's exercise of his constitutional right to a jury trial and

refer to that exercise” in a derogatory way. Id.

      Contrastingly, the reference to Faughn’s desire for a jury trial was not

derogative, but rather neutral. We have previously held that comment upon a

defendant’s invocation of another constitutional right violates a defendant’s

rights “only when it was manifestly intended to be, or was of such character

that the jury would necessarily take it to be, a comment upon the defendant's

failure to testify . . . or invited the jury to draw an adverse inference of guilt

from that failure.” Ragland v. Commonwealth, 191 S.W.3d 569, 589-90 (Ky.

2006) (discussing a comment on a defendant’s failure to testify) (internal

citation omitted). The comment made here was not of the character described

in Ragland because it was not “of such character that the jury would

necessarily take it to be, a comment upon” Faughn’s decision to proceed to

                                          15
trial, nor did it invite the jury to draw an adverse inference from that choice.

The comment was a neutral observation linking the military service of the

victim’s husband to upholding a criminal defendant’s right to a jury trial.

Because the comment was not of such character as to draw negative attention

to the invocation of Faughn’s right to a trial, we hold the Commonwealth

committed no misconduct.

   e. No error in the discussion of the jury instructions.

      Faughn’s penultimate claim of misconduct argues that the

Commonwealth gamed the creation of the guilt-phase jury instructions to

suggest to the jury it could ignore the lesser-included offenses in their

deliberation. Faughn does not argue the instructions themselves were infirm;

rather he simply suggests the Commonwealth improperly directed the jury in

how to move through the instruction as it deliberated and as a result violated

his presumption of innocence.

      The instructions tendered to the jury were arranged such that a verdict

form was placed immediately after each offense. During its closing, the

Commonwealth suggested to the jury:

      When you go back, my suggestion is you’re [going to] elect a
      foreperson. And if I were your foreperson, what I would do when I
      start is I would get a show of hands from everybody, I would say,
      who here is in favor of murder. Find out where you are right from
      the beginning. You all have sat, and you’ve heard the case, you have
      your thoughts, you’ve reviewed all the evidence, it’s all in, you have
      your thoughts, you’ve got your wheels spinning. When you go back
      there, the foreperson, the first thing you need to do is ask everybody,
      who here is ready to find the defendant guilty of murder. See how
      many you’ve got. If you’ve got 12, it’s guilty and you move on to the
      next charge. If you have less than 12, that’s where you need to talk
      about it. That’s where you need to talk about the evidence, answer
                                         16
      each other’s questions. You can come out here and review the
      bodycam, you can listen to the audio, you can look at pictures. We
      can accommodate about anything you need to review, to get your
      questions answered. And this is what I would say, I believe some if
      not all of you have already, after hearing the evidence, you’re ready
      to deliver a verdict of guilty on murder. And there may be some
      people who are on the fence. For the people who have already had
      this burden of proof satisfied in your mind, that you’ve already
      reached a guilty verdict, from the evidence it’s already there. Hold
      your ground. Hold your ground. You’ve seen the truth. You’ve seen
      the evidence, and you know what this is. It’s murder, hold your
      ground on that. Answer the questions, talk with each other.

Faughn argues that this statement led the jury to key in on the initial charge of

murder and not consider the lesser offenses. We disagree. Certainly, the

Commonwealth’s suggestion would have the effect of shortening deliberations

by having the jury move on to the non-murder charges if unanimity could be

reached at the outset. However, the Commonwealth did not mislead the jury

into ignoring the lesser-included offenses. The Commonwealth acknowledged

that unanimity may not occur initially and implored the jurors to discuss the

evidence until they reached agreement on one of the charges. The jurors were

also aware of the lesser-included offenses as options because they were walked

through the entirety of the instructions—including a statement regarding

Faughn’s presumption of innocence—by the circuit court prior to deliberation.

The Commonwealth’s suggestion no more shifted the burden of proof to

Faughn than any other time the Commonwealth made clear its position on

Faughn’s guilt. The Commonwealth’s suggestion to the jury was not

misconduct.




                                       17
   f. No error in discussing parole during the penalty phase.

      Finally, Faughn argues that the Commonwealth committed misconduct

by directing the jury to consider Faughn’s parole eligibility. During its penalty

phase closing, the Commonwealth said,

      So, what I would say to you is, the life sentence will do this for Mr.
      Faughn. He will see the parole board in 20 years, that is three
      years after he would see the parole board on the minimum
      sentence of 20 years. You need to assume that he will be paroled
      in 20 years. You need to assume that. You need to assume that at
      his age that after 20 years in prison that they will hear what they
      need to hear to let him out and that he will be out, and he will be
      able to drive and go and do as he pleases, under the supervision of
      a parole officer. And the life sentence will do this for him. If he
      does what he needs to do when he gets out on parole, if he does
      what he needs to for the rest of his life, he won’t see another day in
      prison. But if he messes up, he’ll be under supervision for the rest
      of his life for those parole officers. They can make sure that he
      gets the help that he needs. That if he’s in trouble, if he needs to
      be back in prison, they can make sure that that happens.

Faughn argues that because he is not guaranteed to be paroled in 20 years, the

statement had the effect of misadvising the jury as to the legal effect of its

verdict.

      As a general matter, Faughn is correct that he is not guaranteed parole

at his first hearing. Ruppee v. Commonwealth, 754 S.W.2d 852, 853 (Ky.

1988). But, he is incorrect in suggesting that the Commonwealth misadvised

the jury. Defendants sentenced to life do indeed go before the parole board

after 20 years. KRS 439.3401(2). The Commonwealth did not state that

Faughn will be paroled at that time, only that he may be and the jury should

assume that he would be paroled. The Commonwealth stated the law

accurately and provided the jury with a roadmap for Faughn’s future

                                        18
relationship with the correctional system if it gave him a life sentence. We hold

the statement was not misconduct.

III.   Admission of the Bodycam Video was Harmless Error.

       Faughn next argues the circuit court erred in admitting a portion of

Officer Mitch Frazier’s bodycam recording of the immediate aftermath of the

collision. The bodycam footage depicted Barrow dying on the ground in her

yard after the accident. Faughn argues that because he and the

Commonwealth had agreed to stipulate to the medical examiner’s report—

which states Barrow died from blunt force injuries—that admission of the

beginning of the bodycam video, which primarily contained footage of Barrow

laying on the ground in her yard prior to her death, was prejudicial and not

probative of a contested fact. Because Faughn objected at trial to playing the

offending portion of the video, we review for abuse of discretion. See Burdette

v. Commonwealth, 664 S.W.3d 605, 617 (Ky. 2023) (“This Court reviews a trial

court's decision regarding the admissibility of evidence for an abuse of

discretion[]”). “The test for abuse of discretion is whether the trial judge's

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.

1999)).

       As an initial matter, Faughn contends that the circuit court erred by not

reviewing the disputed portion of the video prior to making its ruling as to

admissibility. Given this Court’s recent precedent addressing the necessity for

the trial court to view disputed evidence prior to ruling on its admissibility, we

                                        19
agree with Faughn that the Court erred by not viewing the beginning of the

bodycam video prior to allowing its admission. See Carpenter v.

Commonwealth, 681 S.W.3d 36, 40-46 (Ky. 2023) (detailing our recent

precedent on KRE 403 and the need for judges to review disputed evidence,

concluding the trial court abused its discretion by admitting evidence it had

not reviewed because, “[t]he trial court needed to know what was in the videos

to assess the potential prejudice to Carpenter against the evidence's probative

value and properly exercise its discretion under KRE 8 403[]”). 9

      Nevertheless, we hold the error did not have substantial influence on the

outcome of Faughn’s trial.

      A non-constitutional evidentiary error may be deemed harmless,
      . . . if the reviewing court can say with fair assurance that the
      judgment was not substantially swayed by the error. The inquiry
      is not simply “whether there was enough [evidence] to support the
      result, apart from the phase affected by the error. It is rather, even
      so, whether the error itself had substantial influence. If so, or if
      one is left in grave doubt, the conviction cannot stand.



      8 Kentucky Rules of Evidence.

        9 The Commonwealth argues that Carpenter is distinguishable because the

Commonwealth “narrated” the opening portion of the video to the circuit court.
However, Carpenter in part draws from an unpublished Court of Appeals decision,
Purdom v. Commonwealth, No. 2014-CA-002079-MR, 2016 WL 2586080 (Ky. App. Apr.
22, 2016), that presented a similar fact pattern: defendant objected to portions of
videos; the circuit judge did not view the videos, but the Commonwealth described
their content; and the videos were played for the jury. We agreed with the Court of
Appeals’ holding in Purdom, and the situation here presents little difference. This is
true whether the videos were of child pornography or of an accident victim who lay
dying on her lawn—to paraphrase Carpenter, KRE 403’s application is not limited to
images or videos of child pornography or evidence that is not itself the crime.
Carpenter, 681 S.W.3d at 43 (discussing Hall v. Commonwealth, 468 S.W.3d 814 (Ky.
2015), and noting with approval that “Hall’s comprehensive explanation of KRE 403’s
application is not limited to the gruesome murder and autopsy photos or evidence that
is not itself the crime[]”).

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Carpenter, 681 S.W.3d at 46-47 (quoting Winstead v. Commonwealth, 283

S.W.3d 678, 688–89 (Ky. 2009)). The situation here differs from Carpenter. In

Carpenter, the un-reviewed evidence that the trial court admitted—portions of

five videos containing child pornography—had a direct connection to the

differing sentences Carpenter received for knowingly possessing pornographic

images (thumbnails of videos) and for possessing the videos themselves. Id. In

Faughn’s case, the effect of admitting the un-reviewed opening of Officer

Frazier’s bodycam video is not so clear. The only charge to which the video

relates is Faughn’s conviction for wanton murder. The evidence against

Faughn as to that charge was overwhelming: an eyewitness watched his vehicle

leave the road and strike Barrow; and blood tests confirmed the presence of

narcotics in his system immediately after the crash. The existence of these

facts alone could have supported the jury’s verdict and sentence. We can say

with fair assurance that the jury also seeing video of the immediate aftermath

of the crash and of Barrow’s final moments would not have made a significant

difference in the outcome of the case. Accordingly, the error did not have a

substantial influence on Faughn’s case, and the error in admitting the video

was harmless.

      Further, although the circuit court erred in not viewing the video prior to

admission, our rules of evidence were not violated by the video’s contents.

“‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” KRE 401.

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“This standard is powerfully inclusionary and is met upon a showing of

minimal probativeness.” Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky.

2015). The video of Barrow laying on her lawn following the collision meets the

low bar we have set for relevancy. Although the abstract fact and mode of

Barrow’s death can be established by the medical examiner’s report, the video

was relevant to demonstrating that the blunt force injuries that caused

Barrow’s death were caused by Faughn’s vehicle. See Hunt v. Commonwealth,

304 S.W.3d 15, 40-41 (Ky. 2009) (finding no error in admitting autopsy photos

even though no challenge was made to introducing the medical examiner’s

report because “The autopsy photographs . . . were relevant to demonstrate

that [the victim] was, indeed, killed by gunshot wounds as stated in the

indictment[]”).

      Although relevant, the video may be excluded “if its probative value is

substantially outweighed by the danger of undue prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” KRE 403. In determining the

admissibility of relevant evidence, the circuit court must “[f]irst . . . assess the

probative worth of the proffered evidence; second, it must assess the risk of

harmful consequences (i.e., undue prejudice) of the evidence if admitted; and

last, it must evaluate whether the probative value is substantially outweighed

by the harmful consequences.” Hall v. Commonwealth, 468 S.W.3d 814, 823

(Ky. 2015).




                                         22
      “[T]he Commonwealth may ‘prove its case by competent evidence of its

own choosing, and the defendant may not stipulate away the parts of the case

that he does not want the jury to see’”, Hall, 468 S.W.3d at 825 (quoting Pollini

v. Commonwealth, 172 S.W.3d 418, 424 (Ky. 2005)), although the

Commonwealth’s ability to introduce evidence “is not without limit.” Id. at 825.

The full video is undoubtedly heartbreaking, but “general gruesomeness by

itself, while prejudicial, is an insufficient ground to keep out relevant

evidence[.]” Id. at 824. In this instance, the bodycam video of the immediate

aftermath of the collision was, as the Commonwealth argued, the best evidence

of the scene moments after Barrow had been struck. Apart from showing

Barrow in the final moments of her life, it also illustrated the physical

relationship between her body, her semi-demolished garage, and Faughn’s

vehicle in a way that the testimony of her husband or of the responding officers

could not.

      We have addressed similar situations where the objected to evidence was

in the form of autopsy photographs admitted where no dispute existed about

how the death occurred. In Hunt, supra, the defendant objected to the

admission of autopsy photographs where he had not opposed evidence that the

victim had been shot to death and did not oppose the medical examiner’s

testimony about the wounds. Hunt, 304 S.W.3d at 40. We held that the

autopsy photographs were relevant and not excluded under KRE 403:

      As a general rule, photographs do not become inadmissible simply
      because they are gruesome. Such evidence loses its admissibility
      when the photographs begin to depict a body that has been

                                        23
      “materially altered by mutilation, autopsy, decomposition or other
      extraneous causes, not related to commission of the crime, so that
      the pictures tend to arouse passion and appall the viewer.” We agree
      with Hunt that the autopsy photographs were gruesome; however,
      the threshold is much higher than mere gruesomeness for a photo
      to be inadmissible. For example, a photograph of a young child
      victim, where his scalp was pulled back to show there was an intent
      to kill, was not gruesome enough to preclude the photo evidence
      from the jury. In another case, a videotape of the murder scene
      showing burned bodies of victims, as well as numerous photographs
      depicting the same were an accurate description of the crime scene
      and were properly admissible. The autopsy photographs were
      properly admitted because they depicted Bettina's injuries
      accurately and were not so gruesome so as to preclude the
      photograph from evidence. There is no error here.

Id. at 41 (citations omitted). We can discern no reason to treat the bodycam

video recording any different. The video of Barrow was not materially altered

such that it would arouse passion and appall the jury, the video was probative

of the scene of the collision immediately after its occurrence, and although

certainly prejudicial to Faughn, its probative value outweighed whatever

prejudice the video engendered. The video’s admission was proper insofar as

our rules of evidence are concerned.

IV.   The Errors were not Cumulative.

      Finally, Faughn argues that even though none of the errors present in

his trial individually mandates reversal, the cumulative effect of those errors

does. The doctrine of cumulative error provides that,

      multiple errors, although harmless individually, may be deemed
      reversible if their cumulative effect is to render the trial
      fundamentally unfair. We have found cumulative error only where
      the individual errors were themselves substantial, bordering, at
      least, on the prejudicial. Where . . . none of the errors individually
      raised any real question of prejudice, we have declined to hold that
      the absence of prejudice plus the absence of prejudice somehow
      adds up to prejudice.
                                       24
Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) (citations omitted).

Here, although we have identified errors in the trial, none of those errors

bordered on the prejudicial. As we have already discussed, the evidence

against Faughn was substantial, and even in the aggregate the prejudicial

effect of the errors did not render Faughn’s trial fundamentally unfair.

Accordingly, we will not reverse on this basis.

                                 CONCLUSION

      Based upon the foregoing, the judgment of the Todd Circuit Court is

affirmed.

      All sitting. All concur.


COUNSEL FOR APPELLANT:

Travis Bewley
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Russell M. Coleman
Attorney General of Kentucky

J. Grant Burdette
Assistant Attorney General




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