RENDERED: FEBRUARY 24, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0186-MR
JOSEPH CAPSTRAW APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT
V. HONORABLE KELLY EASTON, JUDGE
NO. 18-CR-00696
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING IN PART AND VACATING IN PART
Joseph Capstraw (Capstraw) was convicted of murder and sentenced to
fifty years of imprisonment following a jury trial. He brings this appeal as a
matter of right.1 He asserts that his conviction must be reversed because: (1)
the trial court allowed the admission of eight gruesome photographs that did
not satisfy a KRE2 403 balancing test; (2) the jury instructions violated his
right to a unanimous verdict; and (3) his Confrontation Clause3 rights were
violated. He further argues that the jail fees imposed against him must be
vacated. For the reasons that follow, we affirm Capstraw’s conviction but
vacate the jail fees imposed against him.
1 Ky. Const. § 110.
2 Kentucky Rule of Evidence.
3 See U.S. Const. amend. VI.
I. FACTUAL AND PROCEDURAL BACKGROUND
Approximately two months before the events at issue in this case,
Capstraw met the victim, eighteen-year-old Amber Robinson (Amber). The pair
met at a “rainbow gathering” in Georgia, which Capstraw described as a “hippie
commune festival” where “people get together and pray for world peace.” After
the gathering was over, they made plans to hitchhike to every state in the
country together. Capstraw began hitchhiking two years prior when he aged
out of foster care at the age of eighteen.
On July 7, 2018, Amber and Capstraw were hitchhiking on a highway
near Louisville, Kentucky. A stranger named Jacob Barnes (Jacob),
accompanied by his friend Levi, offered the pair a ride, which they accepted.
When Jacob realized that Amber and Capstraw did not have a place to sleep
that night, he offered to let the pair stay with him at his home in Hardin
County; they agreed. The group then stopped at a gas station near Jacob’s
home and picked up another individual named Amber Noe (Noe).
It was undisputed that when the group arrived at Jacob’s home “the
atmosphere was fine.” Jacob said that Amber and Capstraw were “singing and
playing a ukulele” and “everyone was having fun.” Shortly thereafter, Jacob,
Levi, and Noe went to Louisville so Noe could buy heroin, leaving Amber and
Capstraw at the home by themselves for approximately two hours. Capstraw
claimed that, during that time, he and Amber drank almost an entire fifth of
bourbon between them. He further claimed that he and Amber were having a
2
“really good conversation” when Amber began disparaging Jacob; she was
upset that he was taking Noe to get drugs. An argument ensued. As discussed
below, Capstraw gave differing accounts of what occurred next, but
consistently maintained that he “blacked out,” and when he came to, Amber
was dead on the living room floor.
Capstraw then left Jacob’s home and went to two other homes in the
neighborhood in an apparent attempt to get help, but he got no response. The
third home he went to was occupied by Steven Ginn (Steven). Steven testified
that he was in bed asleep when someone began banging on his front door
between midnight and 1 a.m. He went to the door and saw Capstraw standing
on his porch covered in blood. Steven told Capstraw to stay where he was
while Steven went to get his oldest son out of bed. When Steven and his son
came back, Capstraw “kept blurting out that he had done something,” and
asked them to follow him. Steven and his son obliged. Steven said that as
they were walking back to Jacob’s house with Capstraw, he kept saying that he
had done something bad and then said, “I killed her.”
Sargent Brandon Huggins (Sgt. Huggins) and Officer Charles Foushee
(Ofc. Foushee) were dispatched to the neighborhood that night in response to
calls about a man fitting Capstraw’s description banging on the doors of several
homes. Sgt. Huggins testified that Steven flagged him down and directed him
to Jacob’s address. When Sgt. Huggins arrived at Jacob’s home, Capstraw was
on the ground in the front yard screaming “save her, save her, save her.” Ofc.
3
Foushee said that Capstraw was “very erratic”: he was sweating profusely,
screaming, and “moving around a lot.” The officers detained Capstraw and
questioned him about what had occurred. Capstraw told them that Amber had
attacked him with a knife, he blacked out, and when he came to, she was dead.
Sgt. Huggins testified that Capstraw smelled “a little bit like alcohol,” but Ofc.
Fouchee did not detect the smell of alcohol, nor did he observe any other signs
of intoxication apart from Capstraw’s erratic behavior. The officers observed
several superficial cuts on Capstraw’s inner left forearm, which was bandaged
by emergency medical services at the scene. The officers did not observe, and
Capstraw did not report, any other injuries.
Capstraw was then transported from the crime scene to the police station
to be interviewed by then-Detective Madison Kuklinski (Det. Kuklinski). Det.
Kuklinski testified that, during the interview, Capstraw did not admit to
anything, but made statements such as “I know what I did,” and “I guess I
killed her.” He told her that he and Amber got into an argument because “she
started judging Jacob.” Capstraw claimed that he tried to calm Amber down,
but she went into the kitchen and got a knife and attacked him with it, causing
the cuts on his left arm. He was adamant that he did not cut himself. During
the interview, Capstraw began complaining about having a lot of pain in his
hands. Det. Kuklinski said that she transported Capstraw to the hospital after
the interview to have his hands and left arm treated.
At trial, Capstraw’s version of what occurred changed. He testified that
he and Amber got into an argument and Amber struck him in the face; he then
4
blacked out, and Amber was dead when he came to. Capstraw said he then got
a knife from the kitchen and tried to kill himself by cutting his arm because he
thought Amber was dead. He alleged that, as he was cutting himself, he heard
Amber breathing. He claimed that was the point at which he ran out of the
house and began banging on doors in the neighborhood.
Dr. Jefferey Springer (Dr. Springer) was the forensic pathologist that
conducted Amber’s autopsy. He opined that her causes of death were blunt
force trauma and strangulation. He further testified that Amber was a petite
5’3”, and weighed only 92 pounds, whereas Cox was 6’3” and weighed 188
pounds. Her toxicology screen determined that her blood alcohol level was
.093% approximately two hours before her death.
The jury was instructed on murder, second-degree manslaughter, and
the defense of intoxication. It found Capstraw guilty of murder and sentenced
him to fifty years.
Additional facts are discussed below as necessary.
II. ANALYSIS
A. The trial court did not abuse its discretion by failing to exclude eight
gruesome photographs.
Capstraw’s first assignment of error on appeal is that the trial court
erred by allowing the admission of eight gruesome photographs: four from
Amber’s autopsy and four from the crime scene. Capstraw’s argument was
preserved by his pre-trial motion in limine to exclude the photographs on the
grounds that they did not satisfy a KRE 403 balancing test, and, therefore,
5
should not be admitted in accordance with this Court’s holding in Hall v.
Commonwealth.4 We therefore review the trial court’s ruling for an abuse of
discretion.5 “The test for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.”6
For context, we will first provide descriptions of the photographs, as well
as their accompanying testimony at trial.
Exhibits 4-7 are autopsy photos that were introduced during Dr.
Springer’s testimony. We note here that each of the autopsy photos were taken
after Amber’s blood was removed from her body.
Exhibit 4 depicts Amber’s face and neck from a straight-on angle. Dr.
Springer testified that the photograph shows the multiple blunt force traumas
she sustained to her face and skull, including several lacerations, abrasions,
and contusions. Specifically, he discussed the approximately 1 inch long,
deep, vertical cut between her eyebrows beneath which the frontal bone of her
skull was fractured. He further noted that both of her eyes were black, and
there were smaller cuts below both eyes. The picture also shows that her nose
was broken and displaced. And, finally, Amber’s mouth is only slightly open in
the photograph, but one can see something in her mouth on the left side. Dr.
4 468 S.W.3d 814 (Ky. 2015).
5 See, e.g., Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky. 2011).
6 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
6
Springer explained that, while most of her teeth were intact, her maxilla—the
bone holding her upper row of teeth in place—was fractured and had fallen
down into her mouth.
Exhibit 5 is a photo of the left side of Amber’s neck. Dr. Springer
testified that she also had bruising to the right side of her neck, though it is
not depicted in the photo. The photo demonstrates a lack of ligature marks,
which led Dr. Springer to determine that manual strangulation was used. This
contributed to his conclusion that strangulation was one of the causes of
death.
Exhibit 6 shows a close-up of Amber’s mouth. Dr. Springer discussed
how the photo shows contusions and lacerations sustained around her mouth,
as well as a tooth that was displaced due to her broken maxilla.
Exhibit 7 is a photo of the back-left side of Amber’s head. Her left ear is
pulled away from her head, and there are bruises on the back of her ear and
the skin on her skull behind it. Dr. Springer said that the back of the ear is a
difficult place to injure unless it has been directly struck by something. He
opined that the bruising was also due to blunt force.
Exhibits 28-31 were pictures from the crime scene that were introduced
during Det. Kuklinski’s testimony.
Exhibit 28 depicted how Amber’s body was found. It shows her laying on
her back on the floor of the living room in front of the couch with a large pool of
blood beneath and around her. Det. Kuklinski discussed how the photo
depicts blood and tissue spatter around her on both the floor and the couch
7
itself. It also shows a red, foamy substance coming out of her mouth, which
indicated that she aspirated on her blood. The photo is taken from such a
distance that the extensive damage to her face cannot be discerned, though it
is clearly covered in blood.
Exhibit 29 is a close-up of the bruising on the right side of Amber’s neck.
Det. Kuklinski testified that the fact that bruising was already present when
the police arrived at the scene indicated that a tremendous amount of force
was used to strangle her, as bruises usually take some time to develop.
Exhibit 30 is a cropped picture that shows Amber’s left arm. A large blue
bruise can be seen on the inner part of her arm just above her elbow crease.
Det. Kuklinski said that this kind of bruise is often seen in domestic violence
situations: the suspect will grab the victim by the arm and cause bruising in
that area. And, again, the fact that the bruise had already appeared
demonstrated the amount of force with which it was inflicted.
Finally, Exhibit 31 is a close up of an entire tooth that was found next to
Amber’s body. Det. Kuklinski testified that the fact that a whole tooth was
knocked out demonstrated the amount of force her mouth sustained.
During a pre-trial hearing on Capstraw’s motion in limine, the trial court
went through each of the foregoing eight photographs, as well as an additional
autopsy photo that depicted how the retina in one of Amber’s eyes had
“exploded.” The trial court had the Commonwealth explain the probative value
of each of the photographs individually. The trial court then went through
8
each photo and discussed the reasons that each was admissible or
inadmissible.
The court found that Exhibit 4 was not particularly gruesome in that it
was an autopsy photo, and it was necessary in order for the Commonwealth to
show the level, nature, and number of injuries. It likewise found that Exhibit 5
was not problematic because it only shows the strangulation marks on Amber’s
neck. It found that Exhibit 6 was, again, not very gruesome and was needed to
show the level of disruption to Amber’s facial structures that was not as
apparent in Exhibit 4. It also found Exhibit 7 to not be gruesome because it
only showed her ear and bruising. While it acknowledged that Exhibit 28 was
“perhaps the most troubling and gruesome of all,” it nevertheless found that “it
is what it is: it [showed] where the body was, it [showed] . . . the condition of
the body,” and it therefore had to be admitted. The court had the
Commonwealth crop Amber’s head and additional blood from Exhibit 29 so
that it showed only the bruising on her neck. It similarly had the
Commonwealth crop Exhibit 30 to remove a pool of blood and show only her
arm. And, finally, the court had the Commonwealth use a photograph that
excluded additional blood and showed only the tooth that had been knocked
out for Exhibit 31.
The court completely excluded the autopsy photograph depicting her eye
because it “was so shockingly a problem.” It directed the Commonwealth to
have Dr. Springer explain the injury without using the photograph.
9
Before this Court, Capstraw contends that the probative value of many of
the photos was quite low. He further asserts that Dr. Springer and Det.
Kuklinski could have adequately described Amber’s injuries in a way that
sufficiently proved those facts without the high risk of prejudice engendered by
the admission of the gruesome photos. Therefore, he argues, the trial court
abused its discretion by admitting them. We disagree.
One of the most basic principles regarding the admission of evidence is
the balancing test required under KRE 403, which directs that “[a]lthough
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of undue prejudice[.]” Concerning gruesome
photographs in particular, it is well-established that
[b]ecause the Commonwealth must prove the corpus delicti,
photographs that are probative of the nature of the injuries
inflicted are not excluded unless they are so inflammatory that
their probative value is substantially outweighed by their
prejudicial effect. KRE 403. Thus, a photograph of the crime
scene does not become inadmissible simply because it is gruesome
and the crime is heinous.7
This principle was reinforced by this Court in Hall v. Commonwealth.8 In
Hall, the trial court allowed the Commonwealth to introduce twenty-eight crime
scene and autopsy photos over the defendant’s objection.9 Several of the
photos were needlessly cumulative in that they showed different angles of the
same gruesome injuries, and, therefore, “the probative value of many of the
7Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003) (internal citations
and quotation marks omitted).
8 468 S.W.3d 814 (Ky. 2015).
9 Id. at 820.
10
gruesome photos was quite low.”10 This Court was particularly troubled by the
fact that the trial court determined the admissibility of the photographs “all at
once, with no emphasis on their relative or incremental probative value.”11
Consequently, in Hall, we emphasized that trial courts must conduct a
KRE 403 balancing test on each gruesome photo individually before allowing
its admission:
There are three basic inquiries that the trial court must undertake
when determining admissibility of relevant evidence under Rule
403. First, the trial court must 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.12
Further, “the judge must consider the photographs within the full evidentiary
context of the case, giving due regard to other evidence admitted as well as
evidentiary alternatives[.]”13 However, “the evidence must be highly
inflammatory and prejudicial to compel a party to employ evidentiary
alternatives.”14
In this case, the trial court did precisely what we asked of it in Hall: it
considered each photograph individually and assessed its probative value
against the risk of undue prejudice to the defendant carefully. It also had the
Commonwealth crop certain crime scene photographs so that they showed
10 Id. at 825.
11 Id. at 827.
12 Id. at 823.
13 Id. at 824.
14 Id.
11
precisely what the Commonwealth was trying to demonstrate and excluded
extraneous gruesome details. And, it directed the Commonwealth to employ an
evidentiary alternative for a particularly disturbing autopsy photo of Amber’s
eye.
Further, we agree with the trial court’s determination that the probative
value of the admitted photos was not substantially outweighed by a risk of
undue prejudice to Capstraw. The only issue the jury had to decide in this
case was whether Capstraw acted intentionally or wantonly. “Proof of intent . .
. may be inferred from the character and extent of the victim's injuries.”15
Therefore, the probative value of the photos that demonstrated Amber’s
numerous injuries and the corresponding amount of force required to inflict
them—Exhibits 4, 6, 7, 29, 30, and 31—was quite high. And, as the trial court
noted, none of those photos were gruesome enough to warrant the use of
evidentiary alternatives. The remaining two photographs, Exhibits 5 and 28
also had high probative values. Exhibit 5 demonstrated that one of Amber’s
causes of death was manual strangulation, which further suggested that
Capstraw acted with intent. Exhibit 28, which is by far the most gruesome
photograph in the group, depicted how Amber was discovered by police at the
crime scene. This photograph accordingly had a very high probative value as it
was essential to the Commonwealth in proving the corpus delicti.
15 Ratliff v. Commonwealth, 194 S.W.3d 258, 275 (Ky. 2006).
12
Based on the foregoing, we hold that the trial court did not abuse its
discretion.
B. Capstraw’s right to a unanimous jury verdict was not violated.
Capstraw next alleges that the jury instruction for murder violated his
right to a unanimous verdict. Those instructions directed:
You will find the Defendant guilty of Murder under this Instruction
if, and only if, you believe from the evidence beyond a reasonable
doubt all of the following:
A. That in this county on or about the evening hours of
July 6, or the early morning hours of July 7, 2018,
and before the finding of the Indictment herein, he
killed Amber Robinson by inflicting blunt force
trauma, or strangulation, or both; AND
B. That in so doing:
(1) He caused the death of Amber
Robinson intentionally; OR
(2) He was wantonly engaging in conduct
which created a grave risk of death to
another and thereby caused the death of
amber Robinson under circumstances
manifesting an extreme indifference to
human life.
Capstraw argues that these instructions violated his right to a unanimous
verdict because the jury was instructed on two different mens rea
requirements: intentional and wanton. Accordingly, he argues, some of the
jurors could have believed he acted intentionally, while others could have
believed he acted wantonly, thereby violating his right to a unanimous verdict.
However, Capstraw did not properly preserve this argument for our
review. While we acknowledge that Capstraw proffered his own jury
13
instructions that objected to the giving of any jury instructions, that blanket
objection is insufficient:
No party may assign as error the giving or the failure to give an
instruction unless the party's position has been fairly and
adequately presented to the trial judge by an offered instruction
or by motion, or unless the party makes objection before the
court instructs the jury, stating specifically the matter to which
the party objects and the ground or grounds of the objection.16
And, upon careful inspection of the record, Capstraw did not object to the jury
instruction that was ultimately submitted to the jury. While discussing the
jury instructions with the trial court, the following exchange regarding the
murder instruction occurred:
Defense: We possibly have one concern that we’re still fleshing
out. It’s that, the way the jury form is set up, it seems that, we’re
concerned about a possible inconsistent verdict where there’s a
split between intentional or wanton murder and there’s no way
to—
Court: That’s not—
Commonwealth: That’s not an issue.
Defense: Fair enough.
Court: I see that, but the case law is that if six of the jurors believe
it was intentional and six of them think it was wanton with
extreme indifference, since it is the same offense, murder, same
classification, same penalty, they’re not required to be unanimous
as long as each of them believe one of those two things. I think
that is the law in Kentucky.
The defense did not pursue the issue further. We therefore hold that this issue
is unpreserved.
Nevertheless, Capstraw’s assignment of error implicates his
constitutional right to a unanimous verdict.17 “[A]lleged constitutional errors, if
16 Kentucky Rule of Criminal Procedure (RCr) 9.54(2).
17 Ky. Const. § 7.
14
unpreserved, are subject to palpable error review.”18 We will accordingly review
for palpable error.19
Capstraw asserts that we must overturn our well-established precedent
that a “‘combination’ [murder] instruction, [that] permits a guilty verdict even
though some of the jurors believed the killing intentional and others wanton . .
. does not deprive the defendant of a unanimous verdict, as required by this
State's Constitution, provided that the evidence reasonably supports both
theories of the crime.”20 His basis for this argument is the United States
Supreme Court’s recent holding in Ramos v. Louisiana.21
In Ramos, the United States Supreme Court simply held that the United
States Constitution’s Sixth Amendment right to a unanimous verdict in
criminal trials applies to all states through the Fourteenth Amendment.22 This
holding truly only affected the two states that remained holdouts on that issue:
Oregon and Louisiana.23 In contrast, Kentucky has long required criminal
convictions by a unanimous jury verdict. Over four decades ago, in Wells v.
Commonwealth, this Court held that “Section 7 of the Kentucky Constitution
requires a unanimous verdict reached by a jury of twelve persons in all
18 Walker v. Commonwealth, 349 S.W.3d 307, 313 (Ky. 2011).
19 See RCr 10.26.
Malone v. Commonwealth, 364 S.W.3d 121, 130 (Ky. 2012) (citing Robinson v.
20
Commonwealth, 325 S.W.3d 368 (Ky. 2010)).
21 __ U.S. __, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020).
22 Ramos, 140 S. Ct. at 1397.
23 Id. at 1394.
15
criminal cases.”24 And, several cases that were rendered post-Wells made it
clear that jury instructions such as the one given in this case do not violate a
defendant’s right to a unanimous verdict as long as the evidence was sufficient
to support a combination instruction.25 We are accordingly unconvinced that
Ramos requires us to revisit our long-standing precedent, and hold that
Capstraw’s right to a unanimous verdict was not violated.
C. Capstraw’s Confrontation Clause rights were not violated.
Capstraw’s third assignment of error is that his Sixth Amendment
Confrontation Clause rights were violated when Det. Kuklinski was permitted
to testify about blood alcohol test results from Capstraw’s certified medical
records. Capstraw acknowledges that he failed to preserve this error at the
trial court level, but requests that this Court review for palpable error.26 “The
required showing for relief from a palpable error is probability of a different
result or error so fundamental as to threaten a defendant’s entitlement to due
process of law.”27
Det. Kuklinski testified that during her interview with Capstraw, he
began complaining about pain in his hands. Det. Kuklinski also had to remove
24 561 S.W.2d 85, 87 (Ky. 1978). See also, Kentucky Revised Statute (KRS)
29A.280(3) (“A unanimous verdict is required in all criminal trials by jury”); RCr
9.82(1) (“The verdict shall be unanimous. It shall be returned by the jury in open
court.”).
25See, e.g., Commonwealth v. Hasch, 421 S.W.3d 349, 365 (Ky. 2013); Malone,
364 S.W.3d at 130; Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010);
Benjamin v. Commonwealth, 266 S.W.3d 775, 785 (Ky. 2008).
26 See RCr 10.26.
27 See, e.g., King v. Commonwealth, 554 S.W.3d 343, 375 (Ky. 2018).
16
the bandages from his left arm in order to photograph the numerous cuts he
had. Det. Kuklinski therefore transported Capstraw to the hospital for
treatment after the interview was complete. The certification on the medical
records from that admission stated:
Hardin Memorial Hospital certification regarding patient Joseph
Capstraw . . . The copies of records for which this certification is
made are true and complete reproductions of the original records
housed in Hardin Memorial Hospital. The original records are
made in the regular course of business, and it was the regular
course of Hardin Memorial Hospital to make such records at or
near the time of the matter recorded. This certification is given
pursuant of KRS 422.300-.330 by the custodian for the records in
lieu of personal appearance.
After the Commonwealth had Det. Kuklinski read the records’ certification, the
following exchange occurred:
Q: Do you see a test for blood alcohol?
A: Yes sir.
Q: Does it give you an ethanol reading?
A: It does.
Q: And what is the reading?
A: Less than ten.
Q: And does it give you a way to interpret what does less than ten
mean?
A: There is a key and it says, “less than ten essentially negative.”
In addition, the emergency room physician’s clinical report stated: “Patient
brought into the ED by EPD for medical clearance for an arm laceration.” And,
the radiology report noted that Capstraw had “right hand pain in the fifth
digit.” The medical records were not entered into evidence.
During Det. Kuklinski’s cross-examination, the defense elicited that
Capstraw’s blood samples were taken by the hospital approximately ten hours
after the crime occurred.
17
Capstraw contends that, because he was in police custody when the
hospital tested his blood, the results should be considered “testimonial in
nature.” Consequently, he argues that allowing Det. Kuklinski to testify about
the results instead of the hospital employee that tested his blood violated his
Confrontation Clause rights under the United States Supreme Court’s ruling in
Crawford v. Washington.28 We disagree and hold that this Court’s ruling in
Little v. Commonwealth29 is dispositive.
In Crawford, the United States Supreme Court held “that the Sixth
Amendment prohibits the admission of the testimonial statement of a declarant
who does not appear at trial, unless the declarant is unavailable to testify and
the defendant had a prior opportunity for cross-examination.”30 The Crawford
Court “[left] for another day any effort to spell out a comprehensive definition of
‘testimonial.’”31 However, it noted that one class of statement that qualified as
“testimonial” was a statement “made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available
for use at a later trial.”32 In addition, “[t]he Supreme Court's post-Crawford
decisions in Melendez–Diaz v. Massachusetts33 and Bullcoming v. New Mexico34
28 541 U.S. 36 (2004).
29 422 S.W.3d 238 (Ky. 2013).
30 Peters v. Commonwealth, 345 S.W.3d 838, 842 (Ky. 2011).
31 Crawford, 541 U.S. at 68.
32 Id. at 52.
33 557 U.S. 305 (2009).
34 564 U.S. 647 (2011).
18
distinguished between testimonial medical records and records intended for
medical treatment.”35 This distinction was put on full display in this Court’s
ruling in Little.
In Little, the defendant Shelby Little (Little) was convicted of several
crimes in relation to a motor vehicle accident he caused while under the
influence of alcohol.36 Little was injured during the accident, and was
transported from the crime scene to the hospital.37 On appeal to this Court,
Little argued that a report created by the hospital when he arrived for
treatment was presented at his trial in violation of his Confrontation Clause
rights because “it was introduced without the testimony of the person who
prepared it.”38 The report, which was created by the hospital, was “a
comprehensive blood analysis report that [contained], among other things,
information regarding Little's blood alcohol level shortly after his hospital
admission.”39
The Little Court held that Little’s Confrontation Clause rights were not
violated because the report was not testimonial in nature. It reasoned:
In Melendez–Diaz, the Supreme Court analyzed the admissibility of
affidavits reporting the results of a forensic drug test. The Court
found forensic reports prepared for trial to be “testimonial” but
“medical reports created for treatment purposes” to “not be
testimonial under our decision today.” Justice Sotomayor's
35 Little, 422 S.W.3d at 246.
36 Id. at 240.
37 Id. at 245.
38 Id.
39 Id.
19
concurring opinion in Bullcoming v. New Mexico expanded upon
the importance of this delineation: When the primary purpose of a
statement is not to create a record for trial, the admissibility of the
statement is the concern of state and federal rules of evidence, not
the Confrontation Clause. The concurrence further explained that,
to determine if a statement is testimonial, we must decide whether
it has a primary purpose of creating an out-of-court substitute for
trial testimony.40
This Court noted that the record established that “Little was treated at
University Hospital for injuries he received in the collision, including
emergency surgery for a fractured femur.”41 And, consequently, the
“comprehensive blood analysis report was clearly intended for the primary
purpose of providing that medical treatment to Little, and was not intended to
establish or prove a fact or serve as a substitute for trial testimony.”42 The
admission of the report was therefore governed by KRE and not the
Confrontation Clause.43
In that vein, the Little Court further held that the hospital’s report was a
business record pursuant to KRE 806(3) that was properly certified under KRS
422.305:
Business records of regularly conducted activities, such as medical
records, are subject to an exception to the hearsay rule under KRE
803(6). A medical record must first pass the authentication
requirements before it can be admitted under the hearsay
exception. Typically, the testimony of “the custodian or other
qualified witness” is a foundational requirement for the admission
of a medical record under the business records exception. KRE
40 Id. at 246 (internal citations and quotation marks omitted).
41 Id.
42 Id. (internal quotation marks omitted).
43 Id.
20
803(6)(A). However, a medical record will qualify as self-
authenticating when it consists of medical charts or records of a
hospital that has elected to proceed under the provisions of KRS
422.300 to 422.330[.] KRE 803(6)(A).
[. . .]
[T]he hospital laboratory report was properly admitted as a
business record pursuant to KRE 803(6). The testimony of the
person who prepared the report was not required because the
report was not testimonial and Little's confrontation rights were
not violated by its admission. The report was a business record
properly certified under KRS 422.305(2), and the trial court did not
err in admitting it.44
In Capstraw’s case, the record is clear that he was taken to the hospital
to receive treatment for his hands and left arm. It is likewise clear that the
complained-of blood alcohol test was administered as part of his treatment.
Therefore, as in Little, the corresponding medical report was made for the
purposes of medical treatment and is not “testimonial in nature.” Its
admissibility was therefore not governed by the Confrontation Clause. Further,
the medical records’ certification stated that it was created “in the regular
course of business” and that the certification was “given pursuant of KRS
422.300-.330 by the custodian for the records in lieu of personal appearance.”
The medical record was accordingly a business record pursuant to the hearsay
exception of KRE 806(3) that was properly certified under KRS 422.305(2). No
error, palpable or otherwise, occurred.
44 Id. 246-47 (internal citations and quotation marks omitted).
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D. The trial court erred by imposing jail fees against Capstraw.
Capstraw’s final argument is that the trial court erred by imposing jail
fees against him as part of his sentencing. He acknowledges that this error
was not properly preserved. “Nonetheless, since sentencing is jurisdictional it
cannot be waived by failure to object. Thus, sentencing issues may be raised
for the first time on appeal[.]”45 Capstraw requests review for palpable error.
Capstraw’s sentencing order states: “Defendant is ordered pursuant to
KRS 411.265 and KRS 532.356 to reimburse costs & fees of incarceration in
the amount of record with the Hardin County Jailer as of the date of
sentencing. The costs & fees shall be reimbursed to the Hardin County Jailer.”
Capstraw argues that this was error because there was no evidence of record
that the Hardin County jail had adopted a jail fee reimbursement policy. The
Commonwealth agrees with his argument, as does this Court.
This issue has been addressed in several unpublished cases from this
Court and the Court of Appeals. In Weatherly v. Commonwealth, we vacated
jail fees imposed against the defendant because “there [was] no evidence that
Fulton County had established a jail fee reimbursement policy pursuant to
statute, and no evidence that such policy was ever presented to the trial court
to be considered in sentencing.”46 The Court of Appeals followed suit in three
45Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010) (internal citations
and quotation marks omitted).
46 2017-SC-000522-MR, 2018 WL 4628570, at *10 (Ky. Sept. 27, 2018). See
also, Melton v. Commonwealth, 2016-SC-000552-MR, 2018 WL 898307, at *12 (Ky.
Feb. 15, 2018).
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subsequent unpublished cases: Campbell v. Commonwealth,47 Jackson v.
Commonwealth,48 and Bishop v. Commonwealth49. In each of those cases, the
Court of Appeals vacated the imposition of jail fees due to a lack of evidence
that a jail fee reimbursement policy had been adopted by the jailer with the
approval of the county’s governing body.
With our published opinion today, we reiterate our holding in Weatherly
and emphasize that in order to impose jail fees against a criminal defendant
during sentencing, there must be some evidence presented that a jail fee
reimbursement policy has been adopted by the county jailer with approval of
the county’s governing body in accordance with KRS 441.265(2)(a).50
Consequently, because there was no such evidence presented during
Capstraw’s sentencing, the jail fees imposed against him must be vacated.
47 2020-CA-0690-MR, 2021 WL 1051590 (Ky. App. Mar. 19, 2021).
48 2018-CA-000543-MR, 2019 WL 2246172 (Ky. App. May 24, 2019).
49 2017-CA-001793-MR, 2019 WL 103924 (Ky. App. Jan. 4, 2019).
50 “The jailer may adopt, with the approval of the county's governing body, a
prisoner fee and expense reimbursement policy, which may include, but not be limited
to, the following:
1. An administrative processing or booking fee;
2. A per diem for room and board of not more than fifty dollars ($50) per
day or the actual per diem cost, whichever is less, for the entire period of
time the prisoner is confined to the jail;
3. Actual charges for medical and dental treatment; and
4. Reimbursement for county property damaged or any injury caused by
the prisoner while confined to the jail.” KRS 441.265(2)(a).
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E. CONCLUSION
Based on the foregoing, Capstraw’s sentence is affirmed, but the portion of the
judgment whereby jail fees are imposed against him is hereby vacated.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Aaron Reed Baker
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Mark Daniel Barry
Assistant Attorney General
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