Thomas Simpson v. Commonwealth of Kentucky

RENDERED: SEPTEMBER 22, 2022
TO BE PUBLISHED

Supreme Court of Kentucky
2021-SC-0344-MR

THOMAS SIMPSON APPELLANT

ON APPEAL FROM MUHLENBERG CIRCUIT COURT
V. HONORABLE BRIAN W. WIGGINS, JUDGE
NOS. 2020-CR-00173 & 2020-CR-00318

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VANMETER

AFFIRMING

Thomas Simpson appeals as a matter of right1 from the Muhlenberg

Circuit Court judgment sentencing him to twenty-years’ imprisonment for his

convictions of manslaughter second degree (two counts), driving under the

influence of controlled substances first offense, and persistent felony offender

first degree. On appeal, Simpson raises three claims of error, none of which

merit reversal. Accordingly, we affirm his judgment of conviction and sentence.

I. Facts and Procedural Background

On July 1, 2019, Karen Leach and Linda Embry were travelling along

U.S. Route 431. The weather was clear. Simpson was driving in the opposite

1 Ky. Const. § 110(2)(b).
direction. Near South Carrolton, Simpson’s vehicle crossed the center line and

collided with the sedan driven by Leach. Leach was killed instantly. Embry

was fatally injured and died shortly thereafter. Simpson was apparently

unharmed.

As part of the investigation, Kentucky State Police (“KSP”) troopers

obtained a blood sample from Simpson. The results of the blood test found

present in Simpson’s blood 36 ng/mL of 7-aminoclonazepam, 99 ng/mL of

methamphetamine, and 9.5 ng/mL of amphetamine.2 Simpson was indicted

by a Muhlenberg grand jury on two counts of wanton murder, and a single

count of driving under the influence of drugs. By subsequent indictment,

Simpson was charged with persistent felony offender first degree.

The Commonwealth’s theory of the case was that Simpson was impaired

as a result of his use of methamphetamine. Simpson’s defense was that the

collision was a tragic accident due to his vision being diminished by a

combination of direct sunlight, bad eyeglasses, and an ill-timed attempt to pull

down his minivan’s sun visor.

The Commonwealth called the KSP troopers who were present at the

scene of the collision. Their testimony will be further described as necessary.

The Commonwealth also called Courtney Carver and Dr. Gregory J. Davis to

explain the process and meaning of the blood test. Carver, Forensic Scientist

Specialist with the Central Forensic Laboratory, testified amphetamine is most

2 Testimony adduced was that the drug tests were accurate to plus or minus 4
ng/mL.

2
likely a metabolite of methamphetamine when the latter drug is present in an

individual’s blood. Dr. Davis, Professor and Director of the University of

Kentucky’s Forensic Consultation Service, testified that the amount of

methamphetamine present in Simpson’s blood was nearly twice the limit of the

therapeutic range. Dr. Davis further opined that individuals with high levels of

methamphetamine in their bodies are at a higher risk of erratic driving and

that the investigative evidence and toxicology laboratory evidence were

consistent with Simpson “being under the influence of a combination of

methamphetamine/amphetamine and 7-aminoclonazepam at the time of the

collision.” Dr. Davis reserved his opinion of whether Simpson was impaired at

the time of the accident, drawing a distinction between “intoxication” and

“impairment.”3

After a three-day jury trial, Simpson was found guilty of two counts of

manslaughter second degree,4 of driving under the influence of controlled

substances, and of persistent felony offender first degree. The jury

recommended Simpson be sentenced to two consecutive terms of ten years, a

recommendation that was adopted by the trial court in its judgment. Simpson

now appeals from that judgment.

3 In Dr. Davis’ opinion, any amount of drugs is equivalent to a person being
intoxicated, but that does not equate to impairment.
4 Manslaughter in the second degree is a lesser offense of wanton murder.

3
 I. Analysis
Simpson advances three arguments. First, the KSP failed to give

Simpson Miranda5 warnings prior to questioning him at the scene and had no

probable cause to request a blood draw. Second, the trial court erred in

excusing a prospective juror. And, finally, various errors occurred during the

Commonwealth’s examination of Detective Brandon McPherson. We address

these arguments in turn.

A. Simpson’s Blood Draw and Statements.

Simpson first claims the trial court erred in denying his motion to

suppress the results of the blood draw and the statements he made to

McPherson during their interview. Review of a suppression motion involves a

two-step process. First, we review the trial court’s factual findings, which are

conclusive if supported by substantial evidence. Anderson v. Commonwealth,

352 S.W.3d 577, 583 (Ky. 2011). Second, we conduct a de novo review of the

trial court’s conclusions of law. Id.; see also Jackson v. Commonwealth, 187

S.W.3d 300, 305 (Ky. 2006) (“When reviewing a trial court’s denial of a motion

to suppress, we utilize a clear error standard of review for factual findings and

a de novo standard of review for conclusions of law.”).

Prior to trial, Simpson moved to suppress any statements he made while

at the accident scene as well as the blood draw. Before the trial court,

Simpson made much the same argument now before us: that he was in

custody when he spoke to the troopers, that he was never read his Miranda

5 Miranda v. Arizona, 384 U.S. 436 (1966).

4
rights, and that officers lacked probable cause to subject him to a blood test.

The Commonwealth countered that Simpson was not in custody for purposes

of Miranda, and that the blood draw was properly obtained either by Simpson’s

consent or by probable cause under Kentucky’s implied consent law.

The Commonwealth called Sergeant Nick Rice, Detective Brandon

McPherson, and Trooper Matt Jordan. Rice was the lead officer at the collision

scene. Rice explained KSP policy as it relates to fatal accidents.6 Following the

accident, Rice explained that policy to Simpson and requested a blood draw, to

which Simpson agreed. Simpson further agreed to a brief interview prior to

transport to the hospital. Rice reiterated to Simpson that he was not under

arrest and not in custody. Rice described Simpson as “very cooperative” and

admitted it was not obvious that Simpson was intoxicated at the scene.

At Rice’s direction, McPherson interviewed Simpson, placing him in the

passenger seat of an unmarked official vehicle for that purpose. McPherson sat

in the driver’s seat, with Rice standing near the open passenger-side door.

6 At the suppression hearing, Simpson introduced Kentucky State Police

General Order OM-E-1, addressing Traffic Collision Investigations. Pertinent to this
case is Section F. Requests for Alcohol/Drug Testing in Fatalities/Felony Charges:
1. When a collision involves a fatality or there exists the possibility of a driver
being charged with a felony as a result of the collision, the investigating
officer shall request alcohol/drug testing of all involved drivers.
a. If an operator is deceased, the investigating officer shall make the
request known to the coroner before removal of the body from the scene,
as well as requesting a full autopsy be performed.
b. If the investigating officer suspects that any operator is under the
influence of any illegal substance and the operator refuses the request of
blood or urine testing, the officer shall immediately petition the court for
a search warrant.

5
During the interview, Simpson admitted taking Wellbutrin, a psychological

medication, as well as other medications including Lortabs, Xanax and

Klonopin. McPherson noted Simpson’s pupils were “small and pinpointed” and

his eyes were droopy. The only medication Simpson admitted to taking the day

of the accident was a muscle relaxer. The interview with Simpson was brief—

lasting approximately nine minutes—as the KSP needed to take Simpson to the

hospital for the blood draw. McPherson did not perform any field sobriety tests

on Simpson but explained that KSP’s policy in a fatal accident is to request all

involved drivers to submit to a blood draw.

Trooper Jordan testified that he transported Simpson to the hospital for

the blood draw. Jordan did not handcuff Simpson before placing him in the

cruiser, as was procedure for individuals under arrest. At the hospital, Jordan

read Kentucky’s implied-consent warning to Simpson, observed the blood test,

and drove Simpson back to his home afterwards.

Based on the testimony of the officers, the trial court overruled

Simpson’s motion, finding that Simpson was not in custody for purposes of

Miranda and determining that the question of the blood draw’s legality turned

on the existence of probable cause. In finding the existence of probable cause,

the court pointed to the facts that Simpson had just been involved in a major

collision, was unsure of his role in that collision, had admitted to taking some

medications, and had pinpoint pupils. All these factors, in the trial court’s

view, supported a finding of probable cause. The trial court accordingly denied

Simpson’s motion.

6
 1. Custodial Interrogation. As to whether Simpson was in custody

such that he needed to be provided with Miranda warnings prior to his

interview, “the question of ‘custody’ is reviewed de novo.” Peacher v.

Commonwealth, 391 S.W.3d 821, 846 (Ky. 2013) (citing Alkabala–Sanchez v.

Commonwealth, 255 S.W.3d 916, 920 (Ky. 2008)).

The Supreme Court “adhere[s] to the view that a person is “seized” only

when, by means of physical force or a show of authority, his freedom of

movement is restrained. Only when such restraint is imposed is there any

foundation whatever for invoking constitutional safeguards.” United States v.

Mendenhall, 446 U.S. 544, 553, (1980).

Relevant circumstances include the place, time, and duration of
the questioning; the questioning’s tenor, whether cordial and
neutral or harsh and accusatory; the individual’s statements; the
presence or absence of physical restraints; whether there was a
threatening presence of several officers and a display of weapons or
physical force; and the extent to which the questioner sought the
individual’s cooperation or otherwise informed him that he was not
under arrest and was free to leave.

Peacher, 391 S.W.3d at 846.

We agree with the trial court’s conclusion that Simpson was not in

custody during his interview with McPherson. The interview was brief, only

about nine minutes long, and consisted of McPherson asking Simpson general

questions regarding where he lived, what he thought happened, and what

medications he was on. The interview occurred with McPherson in the driver’s

seat of an unmarked SUV, Rice near the open passenger door, and Simpson

unrestrained in the passenger seat. McPherson reiterated to Simpson prior to

the interview that he was not under arrest nor was he being detained. Only
7
when “a reasonable person would have felt he or she was not at liberty to

terminate the interrogation and leave” can they be said to have been in

custody. Howes v. Fields, 565 U.S. 499, 509 (2012). Here, the troopers made

clear that Simpson was free to leave at any time and did not otherwise coerce

him into remaining by their actions.

Simpson argues that Rice wanted to gather information through the

interview about Simpson’s actions during the wreck. While this

characterization is undoubtedly true, the question “is not whether [Simpson]

was interrogated[.] The question, rather, is whether he was in custody at the

time. Miranda does not forbid non-custodial interrogation.” Peacher, 391

S.W.3d at 847 (citing Stansbury v. California, 511 U.S. 318 (1994)). The fact

that the interview occurred in McPherson’s official vehicle is similarly not

dipositive. See Oregon v. Mathiason, 429 U.S. 492 (1977) (Miranda warning not

required simply because suspect was in station house); Peacher, 391 S.W.3d at

848 (interview not custodial only because suspect did not initiate interview and

it occurred in the police station); Cecil v. Commonwealth, 297 S.W.3d 12, 15–16

(Ky. 2009) (suspect not in custody at police station where he appeared

voluntarily, was told he could leave, and was not under arrest); Fugett v.

Commonwealth, 250 S.W.3d 604 (Ky. 2008) (suspect not in custody when

transported in back of cruiser without handcuffs and interviewed at station

house where he was otherwise free to come and go).

Here, a brief interview transpired in which Simpson was not threatened

either explicitly or implicitly, was unrestrained, and told on multiple occasions

8
that he was neither under arrest nor being detained. Accordingly, Simpson

had not been seized such that troopers were required to read Miranda rights

prior to engaging in the interview. The trial court was correct in declining to

suppress Simpson’s statements.

2. Blood draw. As to whether suppression of the blood test was

required in this instance, “the ‘principal components’ a reviewing court must

examine are ‘the events which occurred leading up to the stop or search, and

then the decision whether these historical facts, viewed from the standpoint of

an objectively reasonable police officer, amount to reasonable suspicion or to

probable cause.’” Commonwealth v. Jones, 217 S.W.3d 190, 196 (Ky. 2006)

(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). The probable

cause standard, however, is incapable of strict definition, and “is a flexible,

common-sense standard.” Williams v. Commonwealth, 147 S.W.3d 1, 7 (Ky.

2004). Furthermore, probable cause “deals with the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370-71 (2003) (internal

quotation marks and citations omitted).

Simpson argues that KSP lacked the requisite probable cause to request

Simpson submit to a blood draw because “KRS7 189A.103(1) requires an officer

to have reasonable grounds the driver violated KRS 189A.010 before he can

seek a blood sample from the driver.” Simpson contends that reasonable

7 Kentucky Revised Statutes.

9
grounds for the draw needed to exist at the time Rice requested Simpson

submit to the draw.

KRS 189A.103(1) states that a person

who operates or is in physical control of a motor vehicle or a
vehicle that is not a motor vehicle in this Commonwealth . . . has
given his or her consent to one (1) or more tests of his or her blood,
breath, and urine, or combination thereof, for the purpose of
determining alcohol concentration or presence of a substance
which may impair one's driving ability, if an officer has reasonable
grounds to believe that a violation of KRS 189A.010(1) or
189.520(1) has occurred. . . .”[8]

Simpson appears to believe that this provision means an officer cannot

approach a suspect and request voluntary consent to a blood draw unless the

officer believes a violation has occurred. In support, Simpson cites to Helton v.

Commonwealth, 299 S.W.3d 555 (Ky. 2009).9

In Helton, the intoxicated driver drove her van off the road causing the

deaths of four people, her passengers, after the driver struck a tree. After the

accident, while the driver was unconscious in the hospital, sheriff’s deputies

visited her and took a blood sample which showed a blood alcohol content of

0.16%. The trial court denied the driver’s suppression motion, finding

statutory consent under KRS 189A.103. We reversed the ruling of the trial

8 In Birchfield v. North Dakota, 579 U.S. 438, 474 (2016), the Supreme Court
held that warrantless blood tests incident to arrest for drunk driving are not permitted
under the Fourth Amendment. In Commonwealth v. McCarthy, 628 S.W.3d 18 (Ky.
2021), we applied its holding to issues arising under KRS Chapter 189A.
9 We address Simpson’s arguments raised under Helton, but following Birchfield

and McCarthy, supra n. 8, we conclude that the result in Helton, remand to the trial
court, would not suffice since a warrant would have been required for the defendant’s
blood draw. That result does not follow in this case, because as noted infra, the KSP
pursuant to policy properly requested Simpson submit to a blood draw following a
fatal accident, and consent remains a valid exception to the warrant requirement.

10
court based on “the interplay between the consent provision and the possibility

of a refusal to submit to testing by a suspect.” Helton, 299 S.W.3d at 558.

While we acknowledged Helton had impliedly consented to a blood draw

pursuant to KRS 189A.103, we held the trial court failed to engage sufficiently

in the probable cause analysis necessary to satisfy the statute’s “reasonable

grounds” requirements and overcome the Fourth Amendment’s prohibition on

unreasonable search and seizure. Id. at 564.

Helton, however, simply does not stand for Simpson’s proposition that

probable cause must exist before a blood draw is requested of a driver. We

read the opinion more narrowly since procedurally the Helton trial court failed

to make findings regarding probable cause so as to bring the blood draw within

KRS 189A.103. 299 S.W.3d at 564.

Support for this can be further found in the statutory scheme. KRS

189A.103 does not cover all forms of consent, only implied consent. KRS

189A.105(2)(b) addresses situations when officers lack immediate suspicion of

a violation of the DUI statutes and explicitly states, “if the incident involves a

motor vehicle accident in which there was a fatality, the investigating peace

officer shall seek such a search warrant for blood testing unless the testing

has already been done by consent.” (Emphasis added). Clearly the

legislature did not intend to create a requirement of probable cause whenever

an officer merely seeks express consent, as was sought with Simpson. KSP

policy, as set forth in its General Order OM-E-1, Section F, thus adheres to the

legislative directive as set forth in KRS 189A.105(2)(b). The KSP officers

11
appropriately followed that policy in asking Simpson for consent in the

immediate aftermath of a fatal accident.

The Commonwealth argues that the record also supports a finding that

Simpson voluntarily consented to the blood draw. The trial court's suppression

ruling was limited to the argument Simpson presents to this Court. While the

Commonwealth invites this Court to address the voluntariness of Simpson's

consent as another basis to affirm the trial court, that issue was not raised by

Simpson and is viewed as conceded. As Simpson states in his reply brief, he

relies on the issue of whether probable cause existed for police to ask him for a

blood test.

B. Excusing Juror L.M.

Simpson next argues that the trial court erred in excusing juror L.M. for

cause. “[W]hether to excuse a juror for cause rests upon the sound discretion

of the trial court and on appellate review, we will not reverse the trial court's

determination ‘unless the action of the trial court is an abuse of discretion or is

clearly erroneous.’” Sturgeon v. Commonwealth, 521 S.W.3d 189, 192 (Ky.

2017) (quoting Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013)).

The right to “an impartial jury is protected by Section 11 of the Kentucky

Constitution, as well as the Sixth and Fourteenth Amendments to the [United

States] Constitution.” Fugett v. Commonwealth, 250 S.W.3d 604, 612 (Ky.

2008). The decision to excuse a juror for cause shall be made when the trial

court has “reasonable ground to believe that a prospective juror cannot render

12
a fair and impartial verdict on the evidence[.]” RCr10 9.36(1); Sturgeon, 521

S.W.3d at 192. That determination, however, “is based on the totality of the

circumstances, [and] not on a response to any one question.” Fugett, 250

S.W.3d at 613. We have in the past cautioned judges that in the event of

uncertainty as to “whether a prospective juror should be stricken for cause, the

prospective juror should be stricken.” Ordway, 391 S.W.3d at 780.

The trial judge struck juror L.M. after the following colloquy sparked

concerns about her ability to be impartial:

L.M.: My grandfather was convicted of vehicular manslaughter.
That was several years ago, but I do remember that and hearing that
so I’m a little worried that I may be just slightly impartial11 to the
defendant in that case.

Judge Wiggins: I’m sorry, you-

L.M.: I’m just a little concerned that I may be slightly impartial just
with that case, just with my family history and just knowing that.

Judge: Mr. Adams, do you want to question her any about this?

Prosecutor: Ma’am, you said that you’re gonna be impartial to the
Defendant, does that mean that you-

L.M.: Not necessarily but I just would have concerns.

Prosecutor: Would it be difficult for you to hear this case?

L.M.: I believe it may be, yes.

Prosecutor: Let me ask you this: I take it from what you said, but
you would be more sympathetic to the Defendant?

L.M.: Right.

10 Kentucky Rules of Criminal Procedure.
11 Context suggests juror L.M. meant “partial” as opposed to “impartial.”

13
Prosecutor: And more likely to find him not guilty? Even if I showed
you everything I’d need to show you’d be more likely to find him
guilty of a lesser charge than murder?

L.M.: Right, the second, just a lesser charge.

Prosecutor: And that’s because of your-

L.M.: Yes, just for that sympathy.

Prosecutor: And how long ago was that?

L.M.: I wasn’t even alive. It was when he was younger and I’ve only
heard stories of it and the situation so I’m not sure-

Prosecutor: But obviously it has had some bearing and effect on
you and your life.

L.M.: Right.

Prosecutor: Did he go to prison for that?

L.M.: Yes, he did.

Prosecutor: Was he outside of your life while in there?

L.M.: Right.

Prosecutor: Your honor, I don’t have any further questions.

Judge: Mr. Sherman, do you?

Defense: Yes, briefly. Do you think that if the court were to instruct
you on the law and you were to sit on the jury and see the facts that
you could enter judgment either for or against the Defendant based
on the facts and the law only?

L.M.: Yes, just with the facts and the law, I could.

Defense: Could you put aside your biases and the fact that your
grandfather was convicted and sit and make those decisions? I
know it would be hard for you.

L.M.: It would be.

Defense: Could you do it? If instructed to do so, could you do it?
14
 L.M.: Yes, I think I could, but I do to an extent think that personal
judgment judges all of us.

Judge: I’m sorry?

L.M.: I do think that to an extent that personal experiences kind of
lead all of us to a thing. I mean, of course I would try my best, but
[trails off].

The trial court elected to strike L.M. “out of an abundance of caution” based

upon her experience with her grandfather.

Simpson argues L.M. was improperly excused and that she had shown

through her responses to defense counsel’s questions that she could put aside

her biases and decide the case based upon the law and the facts. However,

given the exchange between counsel and L.M., the trial judge did not err in

excusing L.M.

L.M.’s hesitancy to approach the trial with an open mind as to possible

verdicts was apparent from her statements. She stated clearly that she would

be sympathetic to Simpson and that, from the outset, would be more inclined

to find for a lesser charge. Defense counsel’s attempts at rehabilitation failed

to overcome these expressions. “[A] juror might say [s]he can be fair, but

disprove that statement by subsequent comments or demeanor so

substantially at odds [with her statement of fairness].” Shane v.

Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007). Here, L.M. indicated she

thought she could overcome her biases, but ultimately reiterated her belief that

her experience with her grandfather would unavoidably sway her judgment.

15
For these reasons, we find the decision of the trial judge to excuse L.M. for

cause was not error.

C. Errors during Commonwealth’s Examination of Det. McPherson.

1. Prosecutor’s question describing victims as “murdered.” Simpson

claims the phrasing of a question asked during direct examination of

McPherson amounted to prosecutorial misconduct not cured by the trial

court’s admonition. During the Commonwealth’s questioning of McPherson,

the following exchange occurred with regard to Simpson’s behavior during his

interview with McPherson:

Prosecutor: Did the Defendant exhibit anything normal that you
would expect in this case?

McPherson: Not at all.

Prosecutor: In fact, did he seem to be phased by the fact that he
just murdered two people?

McPherson: No.

Defense counsel objected as McPherson was responding and the trial judge

immediately sustained the objection and called counsel to the bench. At the

bench, defense counsel moved for a mistrial. The court found the question to

be accusing, conclusory, and inappropriate. However, the court declined to

declare a mistrial and instead admonished the jury to disregard the question

and not consider it in deliberations. Simpson asserts the trial court erred in

not granting a mistrial.

“On review, we note ‘the decision to grant a mistrial is within the sound

discretion of the trial court, and such a ruling will not be disturbed absent an

16
abuse of that discretion.’” Major v. Commonwealth, 275 S.W.3d 706, 716 (Ky.

2009) (quoting Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky.2004)).

“[T]he trial court, in its discretion, may choose to admonish the jury instead of

granting a mistrial; this is so because an admonition is presumed to cure a

defect in testimony.” Id. (citing Alexander v. Commonwealth, 862 S.W.2d 856,

859 (Ky.1993)).

This presumption is only overcome 1) when an overwhelming
probability exists that the jury is incapable of following the
admonition and a strong likelihood exists that the impermissible
evidence would be devastating to the defendant; or 2) when the
question was not premised on a factual basis and was
inflammatory or highly prejudicial.

Id.

The trial court did not abuse its discretion in declining to grant a

mistrial. The sole issue upon which Simpson sought a mistrial was the

prosecutor’s use of the word “murdered” in his question. Certainly, the

question was impermissible, and whether the victims were “murdered” or their

deaths due to some lesser degree of fault was a question within the sole

province of the jury. Tamme v. Commonwealth, 973 S.W.2d 13, 32 (Ky. 1998).

However, the court’s subsequent admonition was sufficient to dispel whatever

taint the question created.

The presumption that the admonition was curative cannot be overcome

by application of either of the possibilities described in Major. The question

may well have been prejudicial to the defendant, but not significantly more

prejudicial than any of the prosecutor’s other questions during the trial.

Indeed, the jury could hardly have been inflamed or Simpson highly prejudiced
17
by a question that suggested Simpson had murdered Leach and Embry while

the jury sat in judgment of Simpson upon two counts of murder. Given the

context of the question, we do not see an “overwhelming probability” the jury

could not follow the admonition and we do not believe the question sufficiently

prejudicial to warrant the relief Simpson seeks. Furthermore, we note the jury,

in fact, found Simpson guilty not of wanton murder but instead the lesser

offense of manslaughter second degree. Accordingly, the trial court did not err

in denying Simpson’s motion for a mistrial.

2. Mischaracterization of the interview. Simpson next argues that

McPherson’s characterization of the interview at the scene was so improper

that it was highly prejudicial to his defense. Because defense counsel did not

object to McPherson’s responses at trial, Simpson requests palpable error

review under RCr 10.26.12 To establish palpable error, an appellant must show

“the probability of a different result or error so fundamental as to threaten his

entitlement to due process of law.” Brooks v. Commonwealth, 217 S.W.3d 219,

225 (Ky. 2007) (citation omitted). Such an error “must be ‘easily perceptible,

plain, obvious and readily noticeable.’” Burns v. Level, 957 S.W.2d 218, 222

(Ky. 1997) (citing Black's Law Dictionary (6th ed. 1995)). “It should be so

12 RCr 10.26 states
A palpable error which affects the substantial rights of a party
may be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or preserved
for review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.

18
egregious that it jumps off the page . . . and cries out for relief.” Chavies v.

Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012).

During the trial, the Commonwealth played McPherson’s interview with

Simpson for the jury. Immediately following, the prosecutor asked McPherson

to characterize Simpson’s behavior during their interaction:

Prosecutor: How would you describe the Defendant’s speech in that
video as pressured, rushed, like you spoke of earlier?
McPherson: Yes, I would even say excited and, again, erratic. He
was kind of everywhere with it, couldn’t put together his thoughts
with his words.
Prosecutor: Is that consistent with—in your training and experience
involving narcotics and controlled substances such as
methamphetamine—are those actions of his speech, are those
indicators that he was impaired on controlled substances like
methamphetamine?
McPherson: Yes. His actions and speech, and again with my
experience in the seventeen years of doing this, when you come
across one who is high on methamphetamine or a stimulant or an
upper they cannot quit talking.
Prosecutor: Could the Defendant quit talking that day?
McPherson: No, I was even telling him “you’re free to go” and he
kept talking and making jokes and just kept going with it. As we all
heard.
Prosecutor: How would you describe his demeanor?
McPherson: [Simpson] didn’t care. He was joking and just wasn’t
bothered. Excited at the same time. He just wasn’t bothered at all.
Prosecutor: All over the place?
McPherson: Yeah, everywhere.
Prosecutor: Telling you about his personal life, family history?
McPherson: Correct. That I didn’t ask about.

Upon review of McPherson’s comments, we find no error, let alone an

error so fundamental as to threaten Simpson’s entitlement to due process of

19
law. KRE13 702 permits a witness not testifying as an expert to opine on

matters which are “(a) rationally based on the perception of the witness; (b)

helpful to a clear understanding of the witness' testimony or the determination

of a fact in issue; and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Here, McPherson provided the jury

with testimony about the interview that was based on his perception of

Simpson’s behavior during that interview, was helpful to understanding how

troopers perceived Simpson on the day of the collision and was not based on

specialized knowledge. In short, McPherson’s testimony fully comported with

KRE 702.

Insofar as Simpson argues that because the case turned on his state of

intoxication and McPherson’s characterization made it seem more likely that

Simpson was intoxicated, we note such testimony is not improper.

Kentucky law permits witnesses to give opinion testimony
regarding a person's apparent intoxication; the apparent age of a
person; and a person's apparent mental or emotional state. The
principle connecting each of these cases is that a witness may
testify as to a conclusion they drew about a person's behavior from
their personal observation of certain facts.

Carson v. Commonwealth, 621 S.W.3d 443, 446-47 (Ky. 2021). See also Burton

v. Commonwealth, 300 S.W.3d 126, 140 (Ky. 2009) (holding that “[p]olice

officers and lay witnesses have long been permitted to testify as to their

observations of a defendant's acts, conduct and appearance, and also to give

13 Kentucky Rule of Evidence.

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an opinion on the defendant's state of impairment based upon those

observations.”).

Additionally, Simpson’s trial counsel cross-examined McPherson as to

other possible causes of Simpson’s behavior: other psychological disorders,

such as ADHD; recent traumatic events, in this case a car collision and an

altercation with members of one victim’s family; general nervousness in

speaking to police officers; and different people reacting differently to certain

circumstances. Whatever truth was to be found in the interview was “left to

the rigorous exchange of cross examination, and ultimately the collective

decision of the jurors.” Brown v. Commonwealth, 226 S.W.3d 74, 87 (Ky. 2007)

(Cunningham, J., concurring).

McPherson’s testimony was undoubtedly prejudicial to Simpson, in the

same sense that Simpson was prejudiced by most of the actions of the

Commonwealth. See Ware v. Commonwealth, 537 S.W.3d 174, 177 (Ky. 1976)

(“A defendant is prejudiced, of course, by being tried at all.”) (overruled on

other grounds by Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016)).

However, this prejudice is not of the sort that mandates reversal had it been

preserved and reversal certainly is not warranted under palpable error review.

McPherson was permitted to testify as to his perceptions of Simpson during the

interview and Simpson contested those perception on cross-examination. If

those perceptions were harmful to Simpson then that harm is simply the result

of the adversarial system working as designed.

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 3. Describing Simpson’s behavior as atypical. Finally, Simpson claims

that palpable error occurred when McPherson told the jury that Simpson’s

behavior after the collision was atypical of others who had been involved in

fatal collisions. As with the prior claim of error, this testimony was not

objected to during the trial. Accordingly, Simpson seeks review under RCr

10.26. As noted above, “[o]n appellate review, our focus is on whether ‘the

defect is so manifest, fundamental and unambiguous that it threatens the

integrity of the judicial process.’” Huddleston v. Commonwealth, 542 S.W.3d

237, 245 (Ky. 2018) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky.

2006)).

During his testimony on direct examination, McPherson was asked about

his prior experience working vehicle collisions:

Prosecutor: Have you worked collisions involving death or injury
before?

McPherson: Yes.

Prosecutor: [Referring to Simpson’s behavior during the interview:]
Is that the typical reaction of a driver after they’ve just been in a
motor vehicle collision that resulted in serious injuries, much less
death?

McPherson: Not typical at all. Typically, they’re usually concerned
about the other driver or if [the other driver] is deceased, they’re
mournful or, just more grieving than they are excited and cutting
jokes up with me.

Prosecutor: Did the Defendant exhibit anything normal that you
would expect in this case?

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 McPherson: Not at all.14

Simpson argues that this line of questioning runs afoul of the general

rule that prohibits questioning as to the habits of a class of individuals of

which the defendant belongs. Ordway, 391 S.W.3d at 776-77; Miller v.

Commonwealth, 77 S.W.3d 566, 572 (Ky, 2002); Johnson v. Commonwealth,

885 S.W.2d 951, 953 (Ky. 1994). In Johnson, we stated the rationale that “[t]o

permit the Commonwealth to cross examine about the habit of a class of

individuals [to show] how one unique individual in that class might have acted

on a given occasion would invite the jury to arbitrarily hold an individual

responsible based on his membership in the class.” 885 S.W.2d at 953. In

Orway, we stated “[w]e do not recognize as legitimate subjects of expert

opinion, ‘how guilty people typically behave’ or ‘how innocent people do not

act.’” 391 S.W.3d at 776-77. By comparing Simpson’s behavior to the behavior

of others involved in fatal collisions, Simpson believes the Commonwealth has

violated this principle.

If we were reversing this case on other grounds, we would admonish the

trial court on retrial that these few questions were irrelevant under Ordway,

Miller and Johnson. Simpson, however, has conceded non-preservation and

requested palpable error review. In other words, was this defect so manifest,

fundamental and unambiguous that it threatens the integrity of the judicial

process? We hold that it does not. Here, the Commonwealth’s questioning and

14 The prosecutor then asked the question describing the victims as “murdered”

that has already been discussed.

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McPherson’s answers were not the sole proof of intoxication. The case against

Simpson involved much more than these short questions and answers,

occurring in a three-day trial. Specifically, the drug tests confirmed Simpson’s

ingestion of methamphetamine and his driving under the influence of

controlled substances, which were present at more than therapeutic levels.

Thus, and while the comparison of Simpson’s behavior to others involved in

fatal wrecks was not properly admissible, we hold that it does not rise to the

level of palpable error resulting in manifest injustice in this case.

III. Conclusion
For the foregoing reasons, the judgment of the Muhlenberg Circuit Court

is hereby affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Kathleen K. Schmidt
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron
Attorney General of Kentucky

Robert Lee Baldridge
Assistant Attorney General

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