Dazzamon R. Jones v. Commonwealth of Kentucky

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                                                RENDERED: AUGUST 14, 2025
                                                     NOT TO BE PUBLISHED


               Supreme Court of Kentucky
                               2024-SC-0332-MR

DAZZAMON R. JONES                                                   APPELLANT



                 ON APPEAL FROM KENTON CIRCUIT COURT
V.                HONORABLE PATRICIA M SUMME, JUDGE
                            NO. 23-CR-00909



COMMONWEALTH OF KENTUCKY                                             APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      A jury of the Kenton Circuit Court found Appellant Dazzamon R. Jones

guilty of the murder of Edgar Lopez and recommended the maximum sentence

of life in prison. The trial court sentenced Jones in accordance with that

recommendation. Jones now appeals to this Court as a matter of right. Ky.

Const. § 110(2)(b). Following a careful review, we affirm.

                FACTUAL AND PROCEDURAL BACKGROUND

      On August 8, 2023, Brian Gray approached Edgar Lopez from behind on

the street and hit him in the head three or four times with a brick. Lopez

responded to Gray’s attack by slamming Gray’s head into the ground several

times, after which Gray stumbled away bloodied and battered. A witness

testified that as Gray stumbled away, Lopez smashed a bottle on the ground
and stated that he knew where Gray lived and that he was going to run Gray

over with his car. Another witness similarly testified that he heard Lopez state

he was going to run over or shoot Gray.

      Appellant Jones, who ultimately killed Lopez, testified that he observed

the fight between Gray and Lopez while sitting in his car. According to Jones,

as Gray staggered away from the fight, Gray passed Jones’ car and stated to

Jones that Lopez was trying to kill him. Jones testified that at that time, he

did not actually believe Lopez was trying to kill Gray. However, he then saw

Lopez in a rage, yelling, and throwing a bottle on the ground before pursuing

Gray in his car. Jones testified that he then believed Lopez was in fact trying

to kill Gray, and therefore drove in pursuit of Lopez.

      Gray’s aunt and uncle Ramada and Floyd Harris testified they were

checking on a home in the area that they owned when they saw a bloody Gray

stagger out of an alley. Gray then staggered into the yard of the Harris’ home

and lay down behind a low cinderblock wall that surrounded the yard while

Ramada called 911. Witness testimony and crime scene photos entered into

evidence at trial establish that Lopez then pulled his car out from an alley

across the street from the yard where Gray had taken refuge, turned right, and

stopped his car. Lopez’s car was thus stopped in the far lane of traffic parallel

to the wall behind which Gary was lying. Ramada testified she then heard

Lopez saying something to Gray.

      Jones drove up shortly thereafter armed with an AR-15 he had

previously purchased from someone at a White Castle. He immediately exited

                                        2
his vehicle and started shooting at Lopez, who was still sitting in his car which

remained stationary in the far lane of traffic parallel to the wall behind which

Gray was lying. Lopez was shot 29 times and died as a result of the shooting.

      At trial, Jones testified that when he pulled up behind Lopez, he got out

and saw Lopez saying something while his hand was hanging out of the

window. Jones contended that he thought Lopez had a gun, although he also

testified he did not actually see Lopez with a gun. He told the jury that he felt

Lopez was going to kill Gray, that he shot Lopez to keep him from killing Gray,

and that he had intended only to stop Lopez, not to kill him. He acknowledged

that Gray was lying behind the low cinderblock wall around the yard at the

time of the shooting, but that he believed Gray was pinned in. Jones also

acknowledged that Lopez was sitting in his car, and would have had to exit the

vehicle and go to the yard where Gray was located to harm him. Jones also did

not dispute that he had emptied the entire magazine during the course of the

shooting.

      Police responded to a call about the shooting and arrived on the scene

where they discovered Lopez dead inside his bullet-riddled car. No weapons

were located in the vehicle, nor did police discover any weapons on Lopez’s

body. Police reviewed surveillance video of the shooter’s car and determined it

was registered to Jones. They could not locate Jones or his vehicle for several

days, during which they obtained a search warrant for Jones’ house. During

the execution of that warrant police discovered an AR-15 magazine and other




                                        3
rounds of ammunition. Jones turned himself in to police four days after the

shooting.

        Jones was indicted, and the jury was ultimately instructed on charges of

murder as well as lesser-included offenses of first-degree manslaughter either

under extreme emotional disturbance (“EED”) or intended only to cause serious

physical injury, and second-degree manslaughter resulting from wanton

conduct. However, the trial court denied Jones’ request for an instruction on

the defense of protection of another. The jury found Jones guilty of murder

and recommended the maximum sentence of life in prison, which the trial

court imposed. Jones now appeals as a matter of right.

                                     ANALYSIS

        Jones raises four issues for our review: (1) whether the trial court erred

in denying his request for an instruction on the defense of protection of

another; (2) whether the trial court erred in admitting statements Gray made to

law enforcement, despite the fact Gray was not called as a witness at trial;

(3) whether the trial court erred in allowing Lopez’s live-in girlfriend to provide

victim impact testimony; and (4) whether Jones was unduly prejudiced by the

prosecutor’s closing argument. We review each issue in turn, providing

additional facts as necessary.

   I.      The Trial Court Did Not Abuse Its Discretion In Refusing To
           Instruct The Jury On Protection Of Another.

        Jones first argues that the trial court erred in refusing to instruct the

jury on the defense of protection of another. Jones tendered an instruction

that included the defense, and thus his objection is preserved. Brafman v.
                                          4
Commonwealth, 612 S.W.3d 850, 857 (Ky. 2020). Because this allegation of

error is preserved, “we review the trial court’s decision not to give the

instruction for abuse of discretion[.]” Id. Indeed, as we have previously

observed, because a trial court’s decisions in the crafting of jury instructions

“are necessarily based upon the evidence presented at the trial, the trial judge’s

superior view of that evidence warrants a measure of deference from appellate

courts that is reflected in the abuse of discretion standard.” Sutton v.

Commonwealth, 627 S.W.3d 836, 848-49 (Ky. 2021) (quoting Sargent v.

Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)).

      “[A]ll criminal defendants have a due process right to present a defense,

including jury instructions that give effect to a defendant’s theory of the case.

It is precisely because of this due process right that trial courts have a duty to

instruct the jury on the whole law of the case.” Breazeale v. Commonwealth,

600 S.W.3d 682, 691 (Ky. 2020). Thus, a trial court must provide “instructions

applicable to every state of the case deducible or supported to any extent by the

testimony.” Gribbins v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016)

(quoting Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). In

determining whether the evidence presented at trial requires the giving of a

requested instruction, “we must ask ourselves, construing the evidence

favorably to the proponent of the instruction, whether the evidence would

permit a reasonable juror to make the finding the instruction authorizes.”

Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013). If so, the

instruction must be given. Brafman, 612 S.W.3d at 858 (“[A] trial court is

                                         5
required to instruct the jury on affirmative defenses and lesser-included

offenses if the evidence would permit a juror reasonably to conclude that the

defense exists or that the defendant was not guilty.”) (quoting Breazeale, 600

S.W.3d at 691).

      Here, Jones requested and was denied an instruction that would have

allowed the jury to find that his killing of Lopez was justifiable because it was

undertaken in lawful protection of another. Our protection-of-another statute

provides in relevant part that:

            The use of deadly physical force by a defendant upon another
            person is justifiable when:

                (a) The defendant believes that such force is necessary to
                    protect a third person against imminent death, serious
                    physical injury, kidnapping, sexual intercourse
                    compelled by force or threat, or other felony involving
                    the use of force, or under those circumstances
                    permitted pursuant to [the “stand your ground”
                    statute]; and

                (b) Under the circumstances as they actually exist, the
                    person whom he seeks to protect would himself have
                    been justified under [the perfect and imperfect self-
                    defense statutes] in using such protection.

Kentucky Revised Statutes (“KRS”) 503.070(2). Thus, the statute sets forth two

elements which both must be satisfied before a defendant’s killing of another in

protection of a third person is justified: first, the defendant must have believed

deadly force was necessary to protect the third person from at least one of the

statutorily enumerated harms; and second, the third person himself also would

have been justified under the circumstances as they actually existed in using

deadly force in self-defense, whether perfect or imperfect. As we have


                                         6
previously noted, while the first element is subjective, the second element sets

forth an objective standard, because “the defender is judged in accordance with

the circumstances as they actually existed with respect to whether the person

being protected would have been privileged to use deadly physical force in self-

protection.” Springer v. Commonwealth, 998 S.W.2d 439, 455 (Ky. 1999)

(emphasis added); see also id. (finding defendant not entitled to protection-of-

another instruction where “[u]nder the actually existing facts, there was no

need to kill [victim] in order to protect [third person] from ‘imminent death,

serious physical injury . . . or [forcible] sexual intercourse’ at his hands”)

(quoting KRS 503.070(2)(a)).

      Thus, in determining whether a jury should be instructed on the defense

of protection-of-another in a case involving deadly force, a court must ask two

questions. First, the court must ask whether the evidence presented at trial

could allow a juror to reasonably conclude that the defendant subjectively

believed deadly force was necessary to protect the third person from a

statutorily enumerated harm set forth in KRS 503.070(2)(a). Second, the court

must ask whether the evidence presented at trial could also allow a juror to

reasonably conclude that objectively, the protected third person would himself

have been justified under the circumstances as they actually existed in using

deadly force in either perfect or imperfect self-defense in conformity with the

requirements set forth in KRS 503.050 and KRS 503.060.

      Here, as to the first element, the evidence at trial was sufficient to allow a

juror to reasonably conclude that Jones subjectively believed deadly force was

                                          7
necessary to stop Lopez from killing Gray. Indeed, Jones specifically testified

at trial that he believed Lopez was going to kill Gray, and that he (Jones)

believed he needed to stop Lopez from doing so. Thus, the first element was

satisfied.

      However, a protection-of-another instruction was warranted only if the

evidence was also sufficient to satisfy the second element of KRS 503.070(2).

That is, the trial court was required to give the instruction only if the evidence

also could have allowed a juror to reasonably conclude that Gray himself would

have been justified under the circumstances as they actually existed in using

deadly force against Lopez in self-defense. KRS 503.070(2)(b). And Gray would

have been justified in using deadly force against Lopez only if he both faced an

actual or imminent use of unlawful force and believed that deadly force was

necessary to protect himself against death or serious physical injury. KRS

503.050(1), (2). 1 We conclude that the trial court did not abuse its discretion

in finding that this standard was not met.

      At the time of the shooting, Lopez was not using force against Gray. Nor

could the evidence support a finding that any use of force by Lopez was




      1 KRS 503.060 sets forth requirements for the defense of imperfect self-

protection. The statute provides in relevant part that one’s use of force is not justified
where he is the initial aggressor, unless either 1) his initial force is nondeadly and is
answered with force causing a belief of imminent danger of death or serious physical
injury, or 2) he withdraws from the encounter, communicates his intent to do so, and
nevertheless is faced with a continuing or threatened use of unlawful force. Here,
though Gray was the initial aggressor, Lopez pursued him even after he communicated
his intent to cease combat by retreating from the scene of the initial fight. Thus,
Gray’s mere status as the initial aggressor alone would not have barred his use of
force in self-protection under KRS 503.050.
                                            8
imminent. “Imminent” for purposes of KRS 503.050 is defined as “impending

danger,” a term we have construed to require that the use of force be “[a]bout

to occur at any moment.” KRS 503.010(3); Lickliter v. Commonwealth, 142

S.W.3d 65, 71 (Ky. 2004) (quoting Webster’s II New Riverside University

Dictionary 611 (1984)). However, the evidence could not support a finding that

at the time of the shooting, Lopez was about to “at any moment” strike Gray

with his car. Indeed, when Jones opened fire Lopez was sitting in his vehicle

across the street from where Gray was lying behind a wall. Though the vehicle

was running and was later discovered to be in gear, it remained stationary.

And perhaps most notably, Lopez’s vehicle was in any event across the street

from and parallel to the wall behind which Gray was lying, pointed away from

rather than at Gray. Thus, while witnesses admittedly testified that Lopez had

threatened to run Gray over with his car, to do so Lopez would have had to

press the accelerator and then drive in an arc across the opposing lane of

traffic, up over the curb, around a large tree that was along the curb, and then

finally towards and through the low cinderblock wall behind which Gray was

lying. Under such circumstances, there could be no reasonable finding that

Lopez was about to “at any moment” run over Gray as would be necessary for

Gray himself to have used deadly force against Lopez.

      Nor did Lopez brandish a weapon, exit his vehicle, or otherwise engage in

conduct that could support a finding that he was about to use deadly force or

force causing serious physical injury against Gray “at any moment.” Indeed, a

search of Lopez and his vehicle after the shooting revealed no weapons. Thus,

                                       9
because the evidence could not support a reasonable finding that Gray faced

an imminent use of force by Lopez, and because Gray himself therefore could

not have used deadly force against Lopez in self-defense, the trial court did not

abuse its discretion in refusing to provide an instruction permitting a finding

that Jones’ killing of Lopez was justified as protection of another.

        Jones argues nonetheless that he was entitled to a protection-of-another

defense given our holding in Mishler v. Commonwealth that even a preposterous

defense theory warrants an instruction. 556 S.W.2d 676 (Ky. 1977). We so

held because “it is the privilege of the jury to believe the unbelievable if the jury

so wishes.” Id. at 680. However, we find Mishler distinguishable from the facts

here.

        In Mishler, the defendant was charged with robbing an IGA store. Id. at

678. At trial, the defendant testified that he remembered the events both

leading up to the moment he approached the cash register and his return to

his vehicle in the parking lot, but that he blacked out from intoxication in the

intervening time during which he actually demanded money from the clerk. Id.

at 679. He therefore requested an instruction on the defense of intoxication,

which the trial court refused to give. Id. We held that even though the story

was “preposterous,” it raised an issue of fact for the jury, which may choose to

believe the unbelievable if it so wishes. Id. at 680. As such, the trial court

erred in refusing to give the requested intoxication instruction. Id. Here,

unlike Mishler, there was simply no evidence—preposterous or otherwise—to




                                         10
support the requested jury finding, i.e., that Gray faced an imminent use of

force by Lopez.

      Moreover, the physical impossibility of Lopez “at any moment” striking

Gray with his stationary vehicle, which was parked parallel to and across the

street from the wall behind which Jones was lying, also distinguishes this case

from Mishler. In Mishler, it was not impossible as a matter of the physical laws

of nature for the defendant to have blacked out solely at the moment the

robbery was effectuated. Thus, the jury should have been allowed to consider

his intoxication defense. In contrast, here it would have been physically

impossible for Lopez, whose vehicle was across the street and pointed away

from Gray, to have been “about to at any moment” driving his vehicle towards

Gray in a threatening manner. Under such circumstances, we have noted that

the usual reservation of fact-finding to the jury need not be applied in blind

ignorance of the laws of physics:

            It is, to be sure, ordinarily the function of a jury to determine
            the weight and effectiveness of the evidence. But . . . the jury
            may not . . . base its verdict upon a statement as to what
            occurred or how something happened when it is opposed to
            the laws of nature or is clearly in conflict with the scientific
            principles, or base its verdict upon testimony that is so
            incredible and improbable and contrary to common
            observation and experience as to be manifestly without
            probative value.

Ross v. Commonwealth, 531 S.W.3d 471, 476 (Ky. 2017) (quoting Coney

Island Co. v. Brown, 290 Ky. 750, 162 S.W.2d 785 (1942)); see also id.

(noting that rule reserving factual determinations to the jury “cannot

apply where the only evidence upon which such adverse party rests his


                                       11
right to succeed consists of a statement of alleged facts, inherently

impossible and absolutely at variance with well-established and

universally recognized physical laws.”) (quoting Louisville & N.R. Co. v.

Chambers, 165 Ky. 703, 178 S.W. 1041 (1915)).

         As such, Jones was not entitled to a protection-of-another defense

premised on his physically impossible theory that Gray faced an

imminent use of force by Lopez, who was seated unarmed in a stationary

vehicle pointed away from Gray who was lying behind a low wall. Quite

simply, while under Mishler a preposterous but scientifically possible

story supported by the evidence at trial may require the giving of an

instruction, a trial court is not required to instruct the jury on a theory of

the case premised on the physically impossible. As such, we find no

reversible error in the trial court’s refusal to provide a protection-of-

another instruction to the jury.

   II.      Though Admission Of Gray’s Statements To Law Enforcement
            Was Error, It Was Harmless.

         Jones next argues the trial court erred in admitting recorded statements

that Gray, who was unavailable for trial, made to law enforcement the day after

the shooting. Gray did not testify at trial because he also had pending charges

from his conduct attacking Lopez in the same incident. Jones objected to the

admission of Gray’s statements to law enforcement, and his objection is thus

preserved. Kentucky Rule of Evidence (“KRE”) 103(a)(1). We therefore review

for abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)

(“Since the trial court’s unique role as a gatekeeper of evidence requires on-the-
                                         12
spot rulings on the admissibility of evidence, we may reverse a trial court’s

decision to admit evidence only if that decision represents an abuse of

discretion.”).

      At trial, Jones sought to offer testimony that Gray walked by Jones’ car

after the initial fight and said Lopez was trying to kill him. The Commonwealth

objected that the statement was inadmissible hearsay. Jones responded that

the statement was not admitted to actually prove that Lopez was trying to kill

Gray, but rather only to demonstrate Jones’ state of mind upon hearing that

statement. The trial court agreed that the statement was not hearsay because

it went to prove Jones’ state of mind upon hearing the statement rather than

whether Lopez actually intended to kill Gray. The trial court thus allowed

Jones to testify to the statement.

      In rebuttal, the Commonwealth sought to play clips of Gray’s interview

with law enforcement the day after the shooting that it contended were

inconsistent with Jones’ testimony that Gray had said Lopez was trying to kill

him. The Commonwealth asserted to the trial court that the statements were

admissible under KRE 806, which permits impeachment of the credibility of a

non-testifying declarant whose hearsay statements have been admitted into

evidence. Jones argued that the statements were not admissible under KRE

806 because the initial statement by Gray had not been admitted as hearsay

but rather to prove Jones’ state of mind.

      The trial court allowed the Commonwealth to play several of Gray’s

statements for the jury. Those statements included that 1) Gray did not want

                                       13
Lopez to die because of the fight and would not have shot him simply because

of the fight; 2) the fight arose because Gray and Lopez had an understanding

they would fight one another the next time they met, but the understanding did

not go so far as to include that either would shoot the other; and 3) Gray did

not want Lopez dead simply because of the fighting. The apparent purpose of

the evidence was to persuade the jury that either Gray did not actually tell

Jones that Lopez was trying to kill him, or that Gray himself did not believe

that to be the case.

         Jones now argues that the trial court erred in admitting Gray’s

statements to law enforcement, given that Gray did not testify at trial. First,

Jones contends Gray’s statements were not admissible under KRE 806. We

agree.

         KRE 806 provides in relevant part that

               [w]hen a hearsay statement has been admitted in evidence,
               the credibility of the declarant may be attacked, and if
               attacked may be supported, by any evidence which would be
               admissible for those purposes if declarant had testified as a
               witness. Evidence of a statement or conduct by the declarant
               at any time, inconsistent with the declarant’s hearsay
               statement, is not subject to any requirement that the
               declarant may have been afforded an opportunity to deny or
               explain.

(Emphasis added). As this plain language makes clear, KRE 806 permits

impeachment of the credibility of a non-testifying declarant only if other

“hearsay” by that declarant has been admitted into evidence. Our Rules define

hearsay as “a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter


                                         14
asserted.” KRE 801(c) Thus, a statement is hearsay only if it is both 1) not

made by the declarant at the trial or hearing, and 2) offered in evidence to

prove the truth of what was asserted in the out-of-court statement. As a

corollary—and as we have previously noted—an out-of-court statement offered

for some purpose other than to prove the truth of what was asserted in that

statement simply is not hearsay. Luna v. Commonwealth, 460 S.W.3d 851, 872

(Ky. 2015) (“[T]he evidence is admissible because it is not hearsay. Indeed, no

hearsay exception . . . is necessary as [the] statements were not offered for the

truth of the matter asserted.”).

      Here, after Jones testified that Gray said Lopez was trying to kill him, the

Commonwealth sought to introduce Gray’s statements to law enforcement

under KRE 806 to contradict that testimony. However, the trial court did not

admit Gray’s statement that Lopez was trying to kill him to prove the truth of

the matter asserted in that statement, i.e., that it was true Lopez was trying to

kill Gray. Rather, the trial court admitted the statement for a different

purpose, namely as proof of Jones’ state of mind upon hearing Gray say that.

As such, because Gray’s statement was not admitted to prove that Lopez was

in fact trying to kill Gray, but rather for a different purpose, it was not

admitted as and did not constitute “hearsay.”

      Thus, because KRE 806 applies only where “hearsay” of a non-testifying

declarant has been admitted, and because Gray’s statement that Lopez was

trying to kill him was not “hearsay” because it was admitted for a purpose

other than to prove its truth, KRE 806 was not a permissible basis to admit

                                         15
Gray’s later statements to law enforcement. Indeed, because the statement

was not admitted to prove that Lopez was in fact trying to kill Gray, but rather

only Jones’ state of mind upon hearing that statement, the ultimate truth of

the statement was irrelevant and thus there was no need for the

Commonwealth to impeach Gray or his statement. See Robert G. Lawson, The

Kentucky Evidence Law Handbook, § 4.35[4][d] n.15 (2023) (“KRE 806 has no

application to out-of-court statements admitted into evidence for some purpose

other than to prove the truth of their contents (non-hearsay), for in this

situation the credibility of the declarant is insignificant and beyond attack.”);

see also United States v. Pena, 24 F.4th 46, 68 (1st Cir. 2022) (noting that

analogous Federal Rule of Evidence 806 “allows an attack on a non-testifying

declarant’s credibility if the declarant’s out-of-court statement is admitted into

evidence for its truth. Otherwise, the out-of-court statement would not

constitute admissible hearsay.”) (citation omitted). Thus, the trial court erred

in concluding that KRE 806 authorized the admission of Gray’s later

statements to law enforcement.

      The Commonwealth argues that the statements were also admissible

under KRE 803(3). We disagree. That Rule provides that “[a] statement of the

declarant’s then existing state of mind, emotion, sensation, or physical

condition” is not excluded by the hearsay rules. Notably, however, the

statement must be one of a “then existing” state of mind or condition. It does

not permit the admission of statements recalling an earlier state of mind or

condition:

                                        16
               The state-of-mind exception is limited to a statement about a
               then-existing mental state or condition.         The “crucial
               component of this [exception] [i]s contemporaneity of the
               declarant’s state of mind and the statement describing it,” and
               it “le[aves] no room for the use of a statement describing a
               state of mind that existed at some early time.” . . . Thus, the
               statement “I felt scared yesterday” would not be admissible,
               but the statement “I feel scared now” would be, if relevant to
               a given case.

Dillon v. Commonwealth, 475 S.W.3d 1, 22-23 (Ky. 2015) (citations omitted).

         Here, each of the statements admitted by the trial court were made by

Gray to law enforcement the day after the killing. Each related to what Gray’s

mental state or condition either before or at the time of his fight with Lopez the

day before. Thus, because the statements did not relate to a “then existing”

state of mind and condition, they also were not admissible under KRE 803(3).

         Jones also contends that the admission of Gray’s statements to law

enforcement violated Jones’ rights under the Confrontation Clause. Again, we

agree.

         The Confrontation Clause of the Sixth Amendment provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” 2 U.S. CONST. amend. VI. Admission of an

out-of-court testimonial statement violates this Clause unless the declarant is

unavailable and the defendant has had a “prior opportunity for cross-

examination.” 3 Crawford, 541 U.S. at 68. Here, Gray’s statements were made


      2 This provision of the Federal Constitution applies to both federal and state

prosecutions. Crawford v. Washington, 541 U.S. 36, 42 (2004).

         3 The out-of-court statement may of course separately be inadmissible hearsay.

Whether introduction of an out-of-court statement violates our hearsay rules however
                                           17
to law enforcement during the course of the post-shooting investigation and

thus were testimonial. Id. at 52 (“Statements taken by police officers in the

course of interrogations are also testimonial under even a narrow standard.”).

In addition, Gray was also unavailable for trial, given that he faced charges

arising out of the same incident. For the same reason, Jones also had no prior

opportunity to cross-examine Gray regarding his statements to law

enforcement. Thus, the admission of Gray’s statements to law enforcement

also violated Jones’ rights under the Confrontation Clause.

      While we find the trial court erred in admitting Gray’s statements to law

enforcement, we nonetheless also conclude the resulting error was harmless

and therefore does not warrant reversal. As to the non-constitutional error of

admitting those statements in violation of our hearsay rules, we ask whether

we can nonetheless say with fair assurance that the judgment was not

substantially swayed by that error. Dillon, 475 S.W.3d at 23 (“A non-

constitutional evidentiary error . . . is harmless if the reviewing court can say

with fair assurance that the judgment was not substantially swayed by the

error.”) (quoting Harris v. Commonwealth, 384 S.W.3d 117, 125 (Ky. 2012)). At

trial, there was no dispute that Jones shot Lopez. Indeed, he testified to having

done so, and asserted that he did so in defense of Gray. The task of the jury

was then to determine whether that conduct constituted criminal homicide and



is a separate and distinct consideration from whether its introduction would violate
the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 821 (2006) (noting
that out-of-court statements not within the scope of the Confrontation Clause
nonetheless remain “subject to traditional limitations upon hearsay evidence.”).
                                         18
if so, whether the appropriate conviction was for murder, first-degree

manslaughter under EED or with intent to cause serious physical injury, or

second-degree manslaughter resulting from wanton conduct. The matters

discussed in Gray’s statements to law enforcement—namely whether Gray

himself would or would not have shot Lopez—were irrelevant to that

determination. In other words, Gray’s statements to law enforcement simply

did not bear in any way on any findings the jury needed to make. Nor were the

statements gruesome, disturbing, or emotionally charged. As such, there is no

basis to conclude that the erroneous admission of those statements in any way

swayed the jury’s verdict.

      As for the constitutional error of admitting Gray’s statements to law

enforcement in violation of Jones’ rights under the Confrontation Clause, we

must consider whether the error was “harmless beyond a reasonable doubt.”

Dillon, 475 S.W.3d at 15. An error is harmless beyond reasonable doubt “if

there is no ‘reasonable possibility that exclusion of the evidence complained of

might have contributed to the conviction.’” Commonwealth v. Armstrong, 556

S.W.3d 595, 604 (Ky. 2018) (quoting Talbott v. Commonwealth, 968 S.W.2d 76,

84 (Ky. 1998)). Again, because Gray’s statements to law enforcement were

wholly irrelevant to the factual determinations the jury needed to make, we

likewise conclude there is also no possibility that the error in admitting those

statements might have contributed to Jones’ conviction. Thus, the harmless

admission of those statements does not require reversal.




                                       19
   III.      Technical Error In Allowing Lopez’s Live-In Girlfriend To Provide
             Victim Impact Testimony Was Harmless.

      Jones next argues that the trial court erred by allowing Ebony Tolliver,

Lopez’s live-in girlfriend of four years and the mother of a child Lopez was

raising as his own, to provide victim impact testimony during the penalty phase

of the trial. Jones objected to Tolliver’s testimony because she did not fall

within the categories of persons permitted to provide victim impact testimony

under KRS 421.500(1)(c). 4 Because Jones objected to Tolliver’s testimony, his

argument is preserved. KRE 103(a)(1).

      KRS 421.500 sets forth an enumerated list of relations permitted to

provide victim impact testimony during the penalty phase of a criminal trial

involving a deceased victim. Those persons are limited to a spouse, an adult

child, a parent, a sibling, and a grandparent. KRS 421.500(1)(c); see also KRS

532.055(2)(a)(7) (permitting the Commonwealth to present evidence during the

penalty phase of “[t]he impact of the crime upon the victim or victims, as

defined in KRS 421.500”). Here, because Tolliver was not married to Lopez,

she was not a “spouse.” Nor was she any of the other relations allowed to

provide victim impact testimony under the statute. As such, it was technically

error for the trial court to allow her to provide victim impact testimony. See

Elery v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012) (finding that trial court’s

permitting of murder victim’s first cousin to testify was “technically error”




      4 The Commonwealth also called Lopez’s mother to testify as a victim, without

objection.
                                         20
because the first cousin “fell outside the statutorily mandated list of potential

witnesses.”).

      However, as noted above, non-constitutional errors in the admission of

evidence are subject to harmless error review. Dillon, 475 S.W.3d at 23. We

have previously found that technical violations of KRS 421.500 are harmless if

the non-qualifying witness nonetheless had a sufficiently close relationship

with the victim to provide relevant testimony and did not testify in a manner

that would be unexpected from a qualifying relation listed in the statute. Hunt

v. Commonwealth, 304 S.W.3d 15, 48-49 (Ky. 2009) (finding harmless error

where there was “no doubt” a qualifying relation would have been as emotional

about the loss of the victim as the non-qualifying witness); see also Elery, 368

S.W.3d at 98 (finding no palpable error where “[i]t is clear from the testimony

given that [non-qualifying witness] knew the victim well, and there is little

doubt in this instance that a family member described in KRS 421.500 would

have delivered powerful testimony as well.”).

      Here, Tolliver had lived with Lopez for at least four years, and he had

acted as a father to her child. There is little reason to believe she was unable

to provide relevant information to the jury about the impact of his death on

those close to him. Nor is there anything inherent in the lack of a formal

marriage between Tolliver and Lopez that would support a conclusion her

testimony would have differed from that of a lawfully married spouse. Put

differently, Tolliver was sufficiently close to Lopez to provide relevant victim

impact testimony, and her testimony would have been no more or less

                                         21
impactful had she been lawfully married to him. As such, any technical error

in admitting Tolliver’s victim impact testimony was harmless and does not

warrant reversal.

   IV.      The Prosecutor’s Closing Argument Was Not Prosecutorial
            Misconduct.

         Finally, Jones argues that he was unduly prejudiced by the following

statement made by the prosecutor during closing argument:

               Prison sentences, obviously they’re meant to punish, they’re
               meant to protect the public. They’re also meant as deterrence
               for anybody out there with an assault rifle that might think
               about doing the same thing, executing a man who didn’t even
               see it coming. Let your verdict, the sentence you impose, serve
               all of those purposes: punishment, public protection, and
               deterrence. When the public sees that video 5 that you all have
               watched this week, they’re going to be as shocked as I’m sure
               you were. Let your sentence deter anyone from committing
               that same act, engaging in that same conduct. Show [Jones]
               the same mercy he showed [Lopez] when he splattered brains
               all over the ceiling of his car and impose a life sentence.

Jones now contends that by coupling a deterrence argument with a reference

to the public’s likely perception of evidence seen during the trial, the

prosecutor made an impermissible “send a message” argument. Jones

acknowledges he did not object at trial and that this allegation of error is

therefore unpreserved. We therefore review for palpable error. Rule of

Criminal Procedure (“RCr”) 10.26.

         We first observe that the vast majority of the prosecutor’s statement

consisted solely of wholly permissible references to the punitive and deterrent

effect of criminal sentences. As we have previously noted,


         5 The referenced video is of surveillance footage from near the crime scene.


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            [S]o long as the jury is well aware that it is sentencing the
            particular defendant before it—with his or her good points and
            bad—on the crime for which he or she has been convicted,
            there is no prejudice in the prosecutor commenting on the
            deterrent effect of that sentence. . . . [I]t is essentially illogical,
            at the sentencing phase, to say that the prosecutor cannot
            encourage the jury to impose a sentence that speaks to
            deterrence, as well as punishes the specific crime before it.

Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009). Thus, the

prosecutor did not engage in misconduct simply by referencing the deterrent

function of sentences in the closing argument.

      That said, we have also noted nonetheless that

            [a]ny effort by the prosecutor in his closing argument to
            shame jurors or attempt to put community pressure on jurors’
            decisions is strictly prohibited. Prosecutors may not argue
            that a lighter sentence will ‘send a message’ to the community
            which will hold the jurors accountable or in a bad light.

Id. Here, however, the sole statement by the prosecutor that referred to the

community in any way was the reference to the community’s reaction upon

seeing video evidence introduced at trial. That mere statement alone in no way

suggested any shame or community pressure on the jurors to reach any

particular verdict. Rather, it merely referred to the nature of the video and that

the community, like the jurors, were likely to be shocked by it. Such a

comment does not rise to the level of an improper invocation of shame or

community pressure on the jury panel. Thus, because the prosecutor’s

statement consisted largely of permissible references to the punitive and

deterrent effect of a criminal sentence, and did not improperly shame or

pressure the jurors, it was not prosecutorial misconduct and does not

constitute error.

                                          23
                                CONCLUSION

       For the foregoing reasons, we affirm the judgment and sentence of the

Kenton Circuit Court.

     All sitting. All concur.



COUNSEL FOR APPELLANT:

Molly Mattingly
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Russell M. Coleman
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General




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