Charles Elmer Eapmon v. Commonwealth of Kentucky

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 RENDERED: APRIL 27, 2023
NOT TO BE PUBLISHED

Supreme Court of Kentucky
2021-SC-0393-MR

CHARLES ELMER EAPMON APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE PATRICIA M. SUMME, JUDGE
NO. 19-CR-01746-001

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Kenton County jury found Appellant Charles Elmer Eapmon (Eapmon)

guilty of two counts of murder and one count of tampering with physical

evidence. As recommended by the jury, the circuit court sentenced Eapmon to

serve life in prison on each murder count and one year in prison on the

tampering with physical evidence count; the sentences run concurrently for a

total sentence of life in prison. Eapmon brings five claims of error on appeal.

He alleges that: 1) the Commonwealth’s questioning techniques were improper,

effectively making the prosecutor an unsworn witness; 2) juror misconduct

entitled him to a mistrial; 3) the detective improperly interpreted inaudible
portions of Eapmon’s interview; 4) KRS1 532.055 was exceeded in the

sentencing phase because the jury heard about dismissed and amended

charges; and 5) the Commonwealth’s remarks in closing argument

impermissibly called attention to Eapmon’s silence. Upon review, we affirm the

Kenton Circuit Court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2016, Charles Douglas Eapmon (Dougie) and Carolyn Tomlinson

(Carolyn) were shot and killed in their home in the early morning hours while

sleeping in their bed. In 2019, Eapmon, Dougie’s uncle, and James Allen

Eapmon (Jimmy), Eapmon’s nephew and Dougie’s cousin, were each indicted

by a Kenton County grand jury on two counts of complicity to murder and one

count of complicity to tampering with physical evidence. Jimmy, in prison for

federal drug charges and serving a life sentence, eventually entered a plea deal.

Jimmy pled guilty to two counts of facilitation to murder.2 As part of the deal,

he agreed to testify against Eapmon in exchange for the Commonwealth and

federal prosecutor submitting a letter to the federal parole board on his behalf.

Eapmon went to trial. Jimmy described family dynamics, events leading up to

the murder, the preparation and plan to kill Dougie, and the events which

occurred after Dougie and Carolyn were killed.

1 Kentucky Revised Statute.
2 Jimmy entered a guilty plea to two counts of facilitation to murder, to one
count of complicity to tampering with physical evidence, and to being a persistent
felony offender in the second degree. Jimmy received a total sentence of twenty years,
to run concurrently with his federal life sentence.

2
 Jimmy testified that he and Dougie were drug dealers, dealing in

methamphetamine, cocaine and heroin. While Dougie sold drugs, Dougie did

not tolerate anyone in the family using drugs and Dougie controlled family

members. According to Jimmy, Dougie would assault family members for drug

use or suspected drug use. Jimmy testified that he had witnessed Dougie beat

Eapmon in the knees with a bat and Dougie bust open Eapmon’s head with the

rings on his hand. In the weeks leading up to Dougie’s and Carolyn’s murder,

Dougie had assaulted Eapmon for his drug use. Dougie then required Eapmon

to live with Jimmy; Dougie stated he would kill Eapmon, otherwise. Jimmy

could not let Eapmon out of his sight or let Eapmon see his girlfriend, or

Jimmy himself would be assaulted by Dougie.3 Eapmon told Jimmy that he

was tired of the young punk trying to control his life; that the only thing

holding him back from killing Dougie before was Eapmon’s mother was still

alive; and that with his mother’s death, if Dougie put hands on Eapmon again,

he would kill Dougie.

On April 5, 2016, Jimmy and Eapmon went to Dougie’s house to drop off

money for a real estate closing. Eapmon took the money to the door, and when

Dougie saw that Eapmon was high, Dougie slapped him. When Eapmon

returned to the car, he told Jimmy that he was tired of the young punk

controlling his life and he was going to kill Dougie. Jimmy testified that he

3Jimmy also described Dougie as being controlling in other ways. Dougie told
Jimmy he owed him $300,000 due to a drug bust and he had to sell drugs until that
debt was paid. Dougie also controlled his grandfather’s prescription pain medication
usage.

3
went along with Eapmon’s plan to kill Dougie because it was inevitable, one

was going to kill the other; if he didn’t help Eapmon, Eapmon would kill him,

too; and a part of him also wanted Dougie dead.

That night and into the next morning, Jimmy and Eapmon went to

Dougie’s house several times, waiting for the lights to go off. At around 3:45

a.m., Jimmy parked the car near Dougie’s house and stayed in the car.

Eapmon took his gun and entered the house through a front window. Jimmy

testified that about ten to fifteen minutes later, he heard a gunshot. Two

minutes later, he heard a second gunshot. Eapmon returned to the car with a

safe. Eapmon described shooting Dougie and Carolyn. According to Jimmy,

there was no plan to kill Carolyn or to take the safe. Jimmy stated that they

drove by Dougie’s house and that the screen door and front door were wide

open. Eapmon disposed of his clothes in a dumpster and threw the handgun

in the river.

Carolyn’s 11-year-old daughter went to the basement between 9:00 a.m.-

10:00 a.m. the morning of April 6, 2016, and found her mom and Dougie. On

her way down to the basement she noticed the front door and screen door were

wide open. The daughter tried to wake Carolyn and Dougie and discovered a

bloody bed and blood spatter on the wall. She woke Dougie’s 12-year-old son

to tell him that something had happened; he also could not wake Dougie and

Carolyn. According to Carolyn’s daughter, they tried to call Jimmy, Eapmon,

and Bub (Eapmon’s son) before calling 911. They noticed that the safe which

had been in the basement laundry room was gone.

4
 Jimmy, Eapmon, and Bub went to the scene. Eapmon went to the police

station to give a statement. According to Jimmy, as planned, Eapmon was

going to tell the police they had gone by the house one time to drop off money.

Jimmy, remaining at the scene, learned a neighbor had a camera facing the

road and the camera should have picked up the cars that were on the street

the previous night.4 Jimmy and Bub went to the police station and spoke with

Eapmon to inform him about the camera. Eapmon returned to the room and

told the police that he forgot that he was at Dougie’s house in the early

morning hours.

Eapmon’s girlfriend at the time of the murders also testified. She

testified that on the night of April 6, 2016, Eapmon came to her house. She

stated that Eapmon told her that he had killed Dougie and Carolyn, that he

had to do it, that Dougie was not ever going to leave him alone, and that he

was not ever going to be able to live his own life.

The Commonwealth called a total of 14 witnesses. Eapmon called three

witnesses. After a seven-day trial, the jury found Eapmon guilty of two counts

of murder and one count of tampering with physical evidence. The jury

recommended that Eapmon serve life in prison on each murder count and one

year in prison on the tampering with physical evidence count and that the

sentences run concurrently for a total sentence of life in prison. The circuit

court sentenced Eapmon accordingly.

4 The neighbor’s video footage was processed and no usable video was found.

5
 Eapmon brings five claims of error.5 We address each claim in turn.

Additional facts are presented as necessary.

ANALYSIS

I. The Commonwealth’s Questioning Did Not Result In Manifest Injustice.

Eapmon’s first claim is that the Commonwealth used improper

questioning techniques at trial, effectively allowing the Commonwealth’s

Attorney to testify, and thus denying Eapmon due process and a fair trial.

While Eapmon seeks RCr6 10.267 palpable error review, he clarifies in his reply

brief that defense counsel objected to one of the Commonwealth’s statements

which he complains about on appeal and that the statement should be

reviewed by this Court accordingly. As reflected below, the objection was

sustained. However, defense counsel did not request an admonition. We have

previously held that when an admonishment is sufficient to cure an error and

the defendant fails to ask for the admonishment, we will not review the error.8

5 Eapmon also seeks relief based upon cumulative error. Because none of the
claims individually raised any real question of prejudice, we conclude there is no basis
for relief under the cumulative error doctrine. See Brown v. Commonwealth, 313
S.W.3d 577, 631 (Ky. 2010).
6 Kentucky Rule of Criminal Procedure.
7 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.
8 Lanham v. Commonwealth, 171 S.W.3d 14, 28 (Ky. 2005).

6
Nevertheless, upon review, we conclude Eapmon did not suffer manifest justice

because of the Commonwealth’s statement or other questioning.

After the Commonwealth rested its case, the defense called Jimmy as its

first witness. The defense established that when Jimmy was incarcerated on

unrelated federal drug charges in 2017, Hubert Lane, Jr. (Lane) was

incarcerated at the same detention center. Defense counsel asked Jimmy if he

told Lane that he committed the murders or if he told Lane that Bub (Eapmon’s

son) was there with him. Jimmy denied telling Lane anything about his family

or anything about his case. The Commonwealth visited Lane in jail over the

weekend, before he was called to testify by the defense. Prior to Lane’s

testimony, Detective Embry had testified on behalf of the Commonwealth.

During that testimony, Detective Embry testified that he had taken two

recorded statements from Lane.

The following Monday, Lane was called as a witness by Eapmon. Lane

testified that while he and Jimmy were incarcerated together, Jimmy talked

with him about his family and after Jimmy commented that Jimmy and

“Charlie” had done some “fucked up shit,” Lane talked with Detective Embry.

The defense asked Lane a series of questions regarding Jimmy’s discussion

about his family members and Lane’s understanding of who Jimmy was

referring to when he talked about his family. Lane subsequently testified that

Jimmy had actually stated that Jimmy and “Boo” had done some “fucked up

shit.” Lane later stated that when he said “Boo” he meant “Bub.” Defense

counsel also asked Lane questions about the Commonwealth Attorney and a

7
detective visiting him in jail over the weekend. Lane said he felt uncomfortable,

and although he recognized the detective, the prosecutor did not tell him who

they were until the end of the visit.

On cross-examination, after the prosecutor established that he

previously prosecuted Lane and was not unknown to Lane,9 the following

colloquy occurred:

CA10: At the beginning, did we just tell you to tell us what’s going
on? Tell us what you’re going to say?
HL11: Yeah.
CA: Okay, so there was no threats or anything like that in the
beginning?
HL: No, but I felt threatened.
CA: Okay. You said two different things here today. You said
that [Jimmy] only made one statement to you and that was
“me and Charlie did some really fucked up shit”?
HL: Yeah.
CA: Okay, is that correct?
HL: Yes sir.
CA: And then, later on in your conversation with [defense
counsel] you changed it to “me and Bub did some really
fucked up shit”?
HL: Well, Charlie was brought up when you said Charlie’s
name.
CA: No, it was not.
HL: Yeah, it [(statement unfinished)].
DA12: Objection.
Judge: Sustained.

9 Eapmon’s complaint about this exchange is discussed below.
10 Commonwealth Attorney.
11 Hubert Lane, Jr.
12 Defense attorney.

8
CA: Okay, today, you testified earlier today that the first
statement [Jimmy] made was “me and Charlie did some
really fucked up shit.”
HL: That was the statement that you told me yesterday, the day
before yesterday when you seen me, was Charlie. I said
Bub. And then come to find out, Bub is Charlie Jr., not
Charlie Sr.
CA: Okay, so you’re saying that even though you said Charlie
here today, now it’s Bub?
HL: It’s Bub. Or rather Boo, not Bub. It’s Boo is what I said.
CA: Okay.

During re-cross examination, the following colloquy occurred:

CA: Mr. Lane, it’s your testimony today that you believe that you
told Detective Embry that [Jimmy] said that it was him and
Boo that did some really bad shit, and that it was me that
told you it was Charlie? Correct?
HL: Well, you referred to, when I said, day before yesterday,
when I referred to Boo, you said Charlie.
...
CA: But we are clear that you said Charlie to Detective Embry?
HL: Not meaning Big Charlie, no.
CA: Okay. Did you tell us the other day the only thing
[Jimmy] told you was “Charlie” and you got the rest from
everybody else in the pod?
HL: Charlie was Boo, he referred to him as Boob, or Bub, or
whatever.
CA: Is that what you said to Detective Embry?

HL: No, I didn’t.

9
 Eapmon cites Kentucky Rules of Professional Conduct (SCR)13

3.130(3.4)(e),14 SCR 3.130(3.7),15 and case law in support of his argument that

the Commonwealth’s questioning was improper. In particular, Eapmon cites

Holt v. Commonwealth,16 reversing the defendant’s conviction, and Fisher v.

Commonwealth,17 affirming the defendant’s conviction, as guidance requiring

reversal of his conviction because the Commonwealth acted as a witness

during cross-examination. The Commonwealth, on the other hand, argues that

the prosecutor was properly impeaching Lane’s testimony.

In Holt, the Commonwealth called the defendant’s jail mate to testify.

When the witness did not give testimony consistent with his prior statement to

the Commonwealth and denied that the defendant told him that he committed

the charged crimes, the prosecutor’s questions included: “Do you remember

13 Kentucky Supreme Court Rule.
14 SCR 3.130(3.4)(e) states:
A lawyer shall not . . . in trial, allude to any matter that the lawyer does
not reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except
when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a civil
litigant or the guilt or innocence of an accused.
15 SCR 3.130(3.7)(a) states:
A lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the
client.
16 219 S.W.3d 731, 737-38 (Ky. 2007).
17 620 S.W.3d 1 (Ky. 2021).

10
talking with me this morning?”; “Do you remember telling me that he told you

that he did it?”; “So, you don’t recall ever telling me that the defendant in this

case told you that he robbed that trailer?”; “Do you remember telling me that

the defendant told you that [he put the dolls] in his mom’s garage?”; and “But

you’re now saying that you don’t recall telling me that the defendant told you

that he put them in his mom’s garage?” The Commonwealth rested it case

without calling any other witness, so there was no witness who impeached the

jail mate’s denial of the defendant’s alleged statement.18

The Holt Court concluded that the effect of the prosecutor’s questions,

asserting what the witness had said to her, placed the prosecutor in the

position of making a factual representation.19 Furthermore, the prosecutor’s

leading questions put the very words the witness refused to say in his mouth,

putting before the jury the credibility of the prosecutor who firmly represented

to the jury that the witness had told her that the defendant had committed the

robbery.20 Reviewing our predecessor court’s precedent, cases from other

jurisdictions, the Commonwealth Attorney’s professional responsibilities and

duties, and Kentucky Rules of Evidence (KRE) 60321 and 802,22 the Holt Court

18 Id. at 733-34.
19 Id. at 734.
20 Id.
21 KRE 603 states: “Before testifying, every witness shall be required to declare
that the witness will testify truthfully, by oath or affirmation administered in a form
calculated to awaken the witness' conscience and impress the witness' mind with the
duty to do so.”
22 KRE 802 states: “Hearsay is not admissible except as provided by these rules

or by rules of the Supreme Court of Kentucky.”

11
explained that it was error for the Commonwealth “to make a statement of fact,

the credence of which is always more or less strengthened by [its] official

position, outside of the record or evidence, which may tend in the least degree

to prejudice the rights of the accused.”23 The Holt Court further explained that

the Commonwealth did not properly impeach the witness under KRE 613 and

did not observe KRE 611(c), asking leading questions,24 and “that assertions of

fact from counsel as to the content of prior conversations with witnesses have

the effect of making a witness of the lawyer and allowing his or her credibility

to be substituted for that of the witness.”25 The Holt Court concluded that by

the Commonwealth’s assertions, statements attributed to the defendant were

placed before the jury without any witness saying that the defendant

confessed, an error which goes to the heart of fundamental fairness and due

process of law.26

In Fisher, the Commonwealth called the defendant’s former cellmate as a

witness.27 In response to the defense casting doubt on whether the cellmate

had learned the details of the crime from the defendant himself or had learned

the details by looking at the defendant’s discovery while the defendant was

away from the cell, the Commonwealth questioned the detective involved to

prove that the cellmate learned the details of the crime directly from the

23 219 S.W.3d at 735 (quoting Commonwealth v. Cook, 7 S.W. 155 (Ky. 1888)).
24 Id. at 738-39.
25 Id. at 737.
26 Id. at 734-39.
27 620 S.W.3d at 11.

12
defendant himself.28 The Commonwealth questioned the detective about the

Commonwealth’s discovery log to show that discovery had not progressed very

far when the witness and the defendant were cellmates. The Commonwealth

asked the detective about the discovery log and the specific discovery

timeline.29 The Commonwealth’s questions included: “Were you present in my

office when we typed this up?”; “Do you know when the next batch of

information would have come into the Commonwealth’s office?”; “And I

wouldn’t have gotten anything else until August 3rd?”; and “Were we able to

note when the preliminary diagnosis from the medical examiner’s office was

given to me?”30 Upon defense counsel’s objection, the trial court directed the

Commonwealth to limit its questioning to matters which the detective had

personal knowledge.31

The Fisher Court described Holt as articulating a particularly sensitive

standard regarding the prosecutor testifying to facts beyond the record through

questioning, especially when the witness’s testimony concerns a defendant’s

out-of-court admission to a crime.32 While recognizing that the Commonwealth

may have properly admitted the discovery log under the rules of evidence, the

Fisher Court concluded that by feeding a witness facts beyond the witness’s

personal knowledge through leading questions and gestures, like in Holt, the

28 Id. at 12.
29 Id. at 12-13.
30 Id. at 13.
31 Id.
32 Id. at 14.

13
prosecutor improperly placed her credibility in issue as an unsworn witness

against the defendant.33 Nevertheless, distinguishing Holt from the facts in

Fisher, the Fisher Court held that the error was not reversible, concluding it

was harmless beyond a reasonable doubt. The Court explained that in Holt,

the prosecutor “practically supplied a purported confession of a criminal

defendant to the jury directly,” when faced with a recalcitrant witness who

persistently denied ever sharing the confession with the prosecutor, whereas in

Fisher, the Commonwealth used suggestion to work with a witness unprepared

to testify to the unfamiliar details of the discovery timeline, a timeline which

was not misrepresented by the Commonwealth, and which did not lend the sort

of central necessary support to the Commonwealth’s case as the alleged

confession did in Holt.34

In light of these cases, Eapmon claims generally that the effect of the

prosecutor’s questions asserting what Lane had said to him placed the

prosecutor in the position of making a factual representation and through the

tenor of the prosecutor’s leading questions, the jury was informed that the

prosecutor had personal knowledge that Lane was lying on the witness stand,

which placed the credibility of the prosecutor before the jury. Eapmon

complains more particularly that the connotation of Lane’s testimony on cross-

examination was that the prosecutor had visited him and tried to put words in

his mouth. Eapmon argues that Lane’s testimony, “Charlie was brought up

33 Id. at 14-15.
34 Id. at 15.

14
when [the prosecutor] said Charlie’s name,” dealt directly with Eapmon’s

innocence, but that statement was directly negated by the prosecutor as a

witness when the prosecutor stated, “No, it was not.” Eapmon also argues that

the prosecutor continued to testify as a witness when he asked, “Did you tell

us the other day the only thing [Jimmy] told you was “Charlie” and you got the

rest from everybody else in the pod?”

The Commonwealth argues that the facts in the instant case are

inapposite to the fact patterns in Holt and Fisher. The Commonwealth

describes Holt as a case in which the prosecutor attempted to impeach the

witness with a prior conversation the prosecutor had with the witness, but the

prosecutor repeated the substance of the witness’s prior statement as if it were

a fact, despite the witness’s denial of having made the statement. Then in

Fisher, the Commonwealth asked leading questions to the lead detective on the

case about discovery procedures, which allowed the Commonwealth to testify

vicariously through the witness.

The Commonwealth contends that, in contrast to Holt, Lane was properly

impeached under KRE 613, the Commonwealth allowing Lane over and over

again to view and hear his prior statement. KRE 613(a) states:

Examining witness concerning prior statement. Before other
evidence can be offered of the witness having made at another time
a different statement, he must be inquired of concerning it, with
the circumstances of time, place, and persons present, as correctly
as the examining party can present them; and, if it be in writing, it
must be shown to the witness, with opportunity to explain it. The
court may allow such evidence to be introduced when it is
impossible to comply with this rule because of the absence at the
trial or hearing of the witness sought to be contradicted, and when
the court finds that the impeaching party has acted in good faith.
15
 Upon review, we agree that the Commonwealth’s intent with the cross-

examination was to impeach Lane with his inconsistent testimony, and the

Commonwealth initially did not ask an improper question, and the

Commonwealth did not lead Lane to make a statement which

implicated that the Commonwealth influenced his testimony. While it may not

have been a result of the Commonwealth’s improper questioning, we recognize

that the Commonwealth’s response, denial of any influence upon Lane’s

testimony, may have initially appeared to call into question Lane’s credibility.

However, as noted above, defense counsel objected to the Commonwealth’s

response, “No, it did not,” and did not request an admonition. Nevertheless,

the Commonwealth later impeached Lane’s testimony by refreshing his memory

through his recorded statement with Detective Embry. Thus, the jury heard

through Lane’s testimony during his interview with the detective that he stated

“Charlie” as the name of the person Jimmy said he did “some really fucked up

shit” with, and not “Boo” or “Bub.”

While the Commonwealth did not initially ask an improper question

about Lane’s out-of-court statements, we agree with Eapmon that one of the

Commonwealth’s questions to Lane may be viewed in the realm of improper

questioning: “Did you tell us the other day the only thing [Jimmy] told you was

“Charlie” and you got the rest from everybody else in the pod?” Rather than

addressing this question, Lane repeated his testimony that Jimmy referenced

“Boo” as the family member with whom he “did some really fucked up shit.”

Although this question by the Commonwealth is the type Holt recognized as

16
improper because “assertions of fact from counsel as to the content of prior

conversations with witnesses have the effect of making a witness of the lawyer

and allowing his or her credibility to be substituted for that of the witness,”35

we conclude the Commonwealth’s question does not warrant palpable error

relief. Lane’s testimony was offered by the defense to implicate Jimmy and Bub

in the murder, as opposed to Jimmy and Eapmon. Like in Fisher and unlike in

Holt, this question did not “practically suppl[y] a purported confession of a

criminal defendant to the jury directly” and was not necessary support to the

Commonwealth’s case. Here, the jury had substantial, if not overwhelming,

testimony regarding Eapmon’s guilt to consider, particularly Jimmy’s

testimony, and Eapmon’s girlfriend’s testimony who testified that Eapmon

confessed committing the murders to her and corroborated Jimmy’s testimony

about Eapmon’s motive for murdering Dougie.

In order to prevail on his claims of error under RCr 10.26, Eapmon must

show that the error resulted in “manifest injustice,” which we have described

as requiring a showing that there “is probability of a different result or error so

fundamental as to threaten a defendant’s entitlement to due process of law.”36

Upon review, we conclude that any harm to Eapmon from the Commonwealth

questions intended to impeach Lane through his prior inconsistent statement

35 219 S.W.3d at 737.
36 Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).

17
and to show that Lane’s testimony was also based upon conversations with

others besides Jimmy, did not rise to the level of manifest injustice.

Eapmon also complains that the Commonwealth violated KRE 609 when

the prosecutor further discredited Lane by testifying through his questions that

he had prosecuted Lane for bail jumping, for which Lane received a five year

sentence. This is also an unpreserved claim of error.

The following exchange between the Commonwealth and Lane occurred

at the beginning of the Commonwealth’s cross-examination:

CA: You and I have met before?
HL: Yes.
CA: I gave you five years in prison, correct?
HL: Excuse me?
CA: I gave you a bail jumping sentence of five years in prison?
HL: Yes ma’am. Yes sir.

KRE 609 states:

For the purpose of reflecting upon the credibility of a witness,
evidence that the witness has been convicted of a crime shall be
admitted if elicited from the witness or established by public record
if denied by the witness, but only if the crime was punishable by
death or imprisonment for one (1) year or more under the law
under which the witness was convicted. The identity of the
crime upon which conviction was based may not be disclosed
upon cross-examination unless the witness has denied the
existence of the conviction. However, a witness against whom a
conviction is admitted under this provision may choose to disclose
the identity of the crime upon which the conviction is based.37

The Commonwealth concedes that the prosecutor should not have

elicited more than the fact that Lane is a convicted felon. However, the

37 Emphasis added.

18
Commonwealth argues that this error does not constitute palpable error.

We agree. With Lane revealing at the beginning of his testimony that he

had been incarcerated since 2016, wearing prison garb on the stand, and

having his testimony impeached by his recorded statement to Detective

Embry, we conclude that no manifest injustice resulted from the

Commonwealth’s questioning Lane about the identity of the felony

committed.

II. The Trial Court Did Not Err By Denying a Mistrial.

Eapmon’s second claim of error is that the trial court committed

reversible error in the penalty phase when it did not grant a mistrial. Eapmon

moved for a mistrial alleging juror misconduct.

After the jury returned the guilty verdict and before court was recessed

for the evening, the trial court properly admonished the jury.38 The next

morning a witness reported to defense counsel that as three jurors exited the

elevator she heard one juror say that her daughter had researched and her

daughter said the jury did the right thing.

Once the trial court was informed that there was potential juror

misconduct, the trial court immediately took steps to determine if there was

any validity to the claim. The trial court held a hearing and questioned the

witness who heard the jurors and then questioned each of the three jurors.

One juror told the trial court that she spoke with her daughter the night before,

38 See KRS 29A.310 and RCr 9.70.

19
she told her daughter the jury had found the defendant guilty, and her

daughter said she had researched and said “you did the right thing.” The juror

and her daughter did not discuss the research. Responding to the trial court’s

question, the juror stated, “I felt then that we really had done the right thing

yesterday.” In terms of the conversation’s impact on her decision making

during the penalty phase, the juror stated that she did not know what the

defendant had done in the past and she felt she should be able to make an

unbiased decision. The other two jurors denied hearing anything about an

affirmation of the verdict and maintained they could be unbiased. Defense

counsel moved for a penalty phase mistrial, contending the juror was

compromised due to the conversation with her daughter. The trial court found

no manifest necessity for a mistrial.

“[A] mistrial is an extreme remedy and should be resorted to only when

there is a fundamental defect in the proceedings and there is a ‘manifest

necessity for such an action.’”39 “[T]he decision to grant a mistrial is within the

trial court’s discretion, and such a ruling will not be disturbed absent a

showing of an abuse of that discretion.”40

A defendant has a constitutional right to an unbiased jury,41 and to a

jury whose verdict is based solely on the evidence received in open court.42

39 Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (citation omitted).
40 Id. (citation omitted).
41 Conyers v. Commonwealth, 530 S.W.3d 413, 426 (Ky. 2017) (citing Remmer v.
United States, 347 U.S. 227 (1954)).
42 Id. (citing Sheppard v. Maxwell, 384 U.S. 333 (1966)).

20
“[J]uror misconduct entitles a defendant to a new trial (or a mistrial) only if

there is sufficient evidence to establish both the misconduct and resulting

prejudice.”43 The trial court must inquire whether “there is a ‘reasonable

possibility’ that a jury’s verdict has been [or will be] affected by material not

properly admitted as evidence,” and if so “the criminal defendant is entitled to a

new trial.”44

Eapmon recognizes that although improper conversations with a juror

are forbidden, not every violation of the rule requires mistrial. Eapmon,

nevertheless, views his case to be akin to Dalby v. Cook45, a will contest case,

in which the attorney’s secretary told a juror: “One got $11,000, the other,

$18,000, that’s all they deserve.”46 The juror was alleged to say that she

agreed and was seen to nod her head in agreement.47 According to affidavits,

the juror said that she could not recall the subject of the conversation with the

secretary.48 However, the secretary made no affidavit, nor did she in any way

refute the claimed discussion with the juror.49 Our predecessor Court

considered the irregularity between the juror and one so closely identified with

the prevailing litigants as one requiring reversal. The Court stated:

43 Id. at 427.
44 Id. at 426-27 (quoting United States v. Davis, 15 F.3d 1393, 1412 (7th Cir.
1994)).
45 434 S.W.2d 35 (Ky. 1968).
46 Id. at 37.
47 Id.
48 Id.
49 Id.

21
 What we are holding is that the good name of the jury system
requires that jury trials be conducted free from outside influence in
fact and that such trials must be so conducted as to leave no
question of complete regularity. We think the average citizen
would find it difficult to believe that a fair jury trial has occurred
when a juror suffers herself to engage in conversation about the
case on trial with any person, to say nothing of one as closely
identified with the case as was [the secretary].50

In Conyers, we recognized that in Dalby our predecessor Court presumed

prejudice when a juror conversed with an interested third-party (the secretary

of one side’s attorney) and expressed agreement with that person’s views as to

what the outcome of the case should be.51 While in this case Eapmon views

the conversation between the juror and her daughter as not an innocent or

non-substantive conversation, we do not view the conversations in the instant

case and in Dalby to be comparable, but perhaps more importantly, we do not

presume prejudice. “Each case turns on its own facts, and on the degree and

pervasiveness of the prejudicial influence possibly resulting.”52 Here, the juror

was not presented any information from the daughter about the defendant.

While the juror expressed the feeling that after talking with her daughter that

“we really had done the right thing yesterday,” the juror explained to the trial

court that the conversation with her daughter should not impact her, there was

no reason she could not make an unbiased decision, and she could put the

conversation with her daughter aside when she was making a decision about

50 Id. at 38.
51 530 S.W.3d at 427.
52 Id. (quoting Meyer v. State, 80 P.3d 447, 453 (Nev. 2003)).

22
punishment. We conclude the trial court did not abuse its discretion by

denying the motion for a mistrial.

III. The Trial Court Did Not Err By Allowing the Detective To Testify
About Eapmon’s Taped Interview.

Eapmon’s third claim of error is that he was denied due process and a

fair trial when the detective interpreted inaudible portions of Eapmon’s taped

interview.

Detective Embry conducted a video-recorded interview of Eapmon on

April 6, 2016. Detective Embry testified at trial about the interview. Audio

difficulties were experienced by the Commonwealth when playing the video.

Trial recessed that afternoon. The next day, the prosecutor resumed

examining Detective Embry about what Eapmon told him about going to

Dougie’s house the morning Dougie was killed. After the first clip was played,

the Commonwealth asked the leading question, “Did he say they went to pick

up some money?” When the next clip wasn’t very clear, the Commonwealth

stated it was going to move the speaker so Detective Embry could hear it. At

that point, defense counsel objected, arguing that the jury could listen to the

tape but it could not be interpreted. The Commonwealth then replayed the clip

and asked Detective Embry a series of questions, phrasing the questions in

terms of what Detective Embry believed he heard. After another clip was

played, the Commonwealth asked the leading question, “So earlier, he told you

he went to pick money up, but now he said they went to drop it off?” Later,

without playing a clip directly beforehand, the Commonwealth asked the

23
leading question: “Going back to what he actually said in the interview, if you

remember, I believe we heard in the clip he said that he wasn’t home when Bub

allegedly got home at 1:00 a.m.?”

Generally, the testimony of a lay witness is limited to matters or facts

about which he has personal knowledge.53 However, a lay witness is permitted

to give opinion testimony, i.e., what he believed, thought, or suspected, about a

matter when the witness’s opinion is based on knowledge not available to the

jury and would be helpful to the jury in reaching its own opinion.54

Eapmon complains that the trial court allowed the Commonwealth to ask

leading questions and allowed Detective Embry to testify about what he

thought Eapmon said on the tapes and this was error, allowing the

Commonwealth and Detective Embry to interpret Eapmon’s videotaped

statement. Eapmon cites Gordon v. Commonwealth55 in support of his

argument.

In Gordon, Gordon claimed the witness was improperly permitted to

interpret the inaudible portions of the tape recording. During Gordon’s trial,

the Commonwealth replayed a portion of the tape, described by the Court as a

substantially inaudible tape recording. After the witness answered that he

could hear the tape, the Commonwealth then asked the witness what he said.

53See KRE 602; KRE 701; Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 287 (Ky.
2014); Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999).
54 See KRE 701; Gabbard v. Commonwealth, 297 S.W.3d 844, 855 (Ky. 2009).
55 916 S.W.2d 176, 180 (Ky. 1995).

24
Rather than answering that question, the witness said, “Yes, I went and asked

Maurice if he had any stuff. And he told me yes. And I told him I wanted a

fifty dollar piece. And he gave it to me. And I said, alright, I sure thank you,

Maurice.” The Court concluded:

Upon retrial, the court must determine whether the tape should be
admitted and, of course, the witness should be permitted to testify.
The court should refrain, however, from permitting the witness to
interpret what is on the tape. It is for the jury to determine as best
it can what is revealed in the tape recording without
embellishment or interpretation by a witness.56

Eapmon contends that, while Detective Embry was entitled to testify as

to his recollection of what was said,57 he went beyond that and provided his

version of inaudible portions of the tape, a practice Sanborn v. Commonwealth58

recognized as prohibited. Upon review, we agree with the Commonwealth that

Detective Embry was not interpreting the tape like the witness in Gordon or

providing his version of what was said for unintelligible pieces of conversation.

Although the audio was not the best quality, Eapmon’s statements which the

Commonwealth asked about were discernible. While the Commonwealth’s

leading questions may have been improper, Detective Embry was asked

questions based upon audible portions of the interview, which he was

personally familiar with; his statements were responsive to the

56 916 S.W.2d at 179-80.
57 Id. at 180.
58 754 S.W.2d 534, 543 (Ky. 1988).

25
Commonwealth’s questions; and he did not progress improperly into the realm

of offering opinions.59 However, even if it were error to allow Detective Embry

to testify about Eapmon’s video-recorded statements, we conclude it was

harmless error and did not affect Eapmon’s substantial rights.60

IV. The Commonwealth’s Violation of KRS 532.055 Is Not Palpable
Error.

Eapmon’s fourth claim is that the scope of KRS 532.055 was exceeded in

the sentencing phase because evidence was introduced of dismissed charges as

well as a charge that had been amended to a lesser offense. Eapmon requests

palpable error review.

During the penalty phase, a probation and parole officer testified about

Eapmon’s prior convictions. The Commonwealth elicited testimony about

Eapmon’s six prior felony convictions, including a 2006 facilitation to murder

conviction. Afterward, the defense elicited testimony that Eapmon pled guilty

to all six of these prior felonies.

On re-redirect examination of the probation and parole officer, the

prosecutor elicited the following testimony:

CA: [Officer], on all those guilty pleas the [defense counsel] just
talked to you about, Mr. Eapmon had a ton of charges
dismissed, correct?
PPO61: That’s correct.
CA: There were PFO’s dismissed?

See Cuzick v. Commonwealth, 276 S.W.3d 260, 266 (Ky. 2009); McRae v.
59

Commonwealth, 635 S.W.3d 60, 70–71 (Ky. 2021) (citing Cuzick, 276 S.W. 3d at 266).
60 RCr 9.24.
61 Probation and Parole Officer.

26
 PPO: Yes.
CA: Assault I’s dismissed?
PPO: Yes.
CA: I am going to hand you back that indictment in 06-CR-490.
. . . And on the indictiment, under count 1, what was Mr.
Eapmon originally charged with?
PPO: Murder.
CA: But he didn’t plead guilty to murder, did he?
PPO: No, he did not.
CA: He pled guilty to a reduced charge of facilitation to murder?
PPO: Correct.

KRS 532.055(2)(a)(2) allows the Commonwealth during the sentencing

hearing to offer evidence of “[t]he nature of prior offenses for which [the

defendant] was convicted.” The Commonwealth may only introduce evidence of

the nature of a defendant’s prior offenses, including the charges for which he

was convicted, and not pre-amended and dismissed charges.62

The Commonwealth concedes it was erroneous for the jury to hear

Eapmon’s dismissed and amended charges but argues that the error is not

palpable error. Under the palpable error standard and in this context, a

defendant must show a likelihood—“a reasonable possibility”—that, but for the

error, a different sentence would have been imposed.63 The Commonwealth

62 See Martin v. Commonwealth, 409 S.W.3d 340, 348 (Ky. 2013); Blane v.
Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012), abrogated on other grounds by Roe v.
Commonwealth, 493 S.W.3d 814 (Ky. 2015); Chavies v. Commonwealth, 354 S.W.3d
103, 115 (Ky. 2011) (same); Cook v. Commonwealth, 129 S.W.3d 351, 365 (Ky. 2004)
(citations omitted); Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996).
63 Parker v. Commonwealth, 482 S.W.3d 394, 407-08 (Ky. 2016) (citing Martin,

409 S.W.3d at 349).

27
asserts that when looking at other cases considering palpable error in this

context, the facts of this case are more similar to Chavies and Martin, two cases

in which the Court concluded there was no palpable error, than Blane, in

which palpable error occurred.

In Blane, the jury found Blane guilty of two counts of first-degree

trafficking in a controlled substance (cocaine); one count of trafficking in

marijuana, eight ounces or more; one count of possession of drug

paraphernalia, second or subsequent offense; and of being a first-degree

Persistent Felony Offender (PFO).64 Blane received the recommended thirty

year sentence, the maximum sentence.65 The Commonwealth elicited

testimony from the deputy circuit clerk about Blane’s original 2001 and 2006

charges, in both cases he was charged with trafficking in a controlled

substance and trafficking in marijuana. In both cases, he was convicted of the

amended charges: possession of a controlled substance and possession of

marijuana.66

The Court held the introduction of the defendant’s original charges of

prior convictions constituted palpable error because it affected a substantial

right to due process, resulting in a manifest injustice.67 Blane received the

maximum penalty on all counts for which he was convicted, and the

64 Id. at 144.
65 Id. at 152.
66 Id.
67 364 S.W.3d at 153.

28
Commonwealth not only elicited the testimony from the deputy circuit clerk

regarding the original charges, but it also emphasized the prior amended

charges in its closing argument to the jury.12 During closing arguments, the

prosecutor stated:

[Appellant], within the past five, six, seven, eight years has been
given several chances himself. He had two prior charges of
trafficking that were amended to possession charges, and he was
only given a one-year sentence on each one of those. So please
think about the prior chances that he’s been given and the fact
that he did have the opportunity to take advantage of those
chances and to do the right thing. But he kept committing the
crimes.68

In Chavies, the jury found Chavies guilty of being a second-degree

persistent felony offender and recommended a sentence of fifty years’

imprisonment for manufacturing methamphetamine and ten years’

imprisonment for receipt of stolen property, to be served concurrently.69

During the penalty phase, a prior indictment was introduced.70 The indictment

charged Chavies with first-degree burglary, but he was convicted of second-

degree burglary under a guilty plea, and with being a second-degree persistent

felony offender, which was later dismissed.71 The Court concluded that the

erroneous introduction of the prior and dismissed charges did not seriously

affect the fairness of the proceeding.72 The dismissed and amended offenses

68 Id. at 153 n.12.
69 354 S.W.3d at 115.
70 Id. at 114.
71 Id. at 114-15.
72 Id. at 115-16.

29
were never pointed out to the jury by the trial judge, the Commonwealth, or the

Commonwealth’s witness; the jury heard about Chavies’s other prior

convictions, including second-degree burglary, theft of a firearm, criminal

mischief, theft of property valued at $300 or more, first-degree robbery, and

attempted kidnapping of a minor; and Chavies did not receive the maximum

penalty on all of the convictions for which he was being sentenced.73

In Martin, the jury found Martin guilty of first-degree trafficking in a

controlled substance and of being a first-degree persistent felony offender

(PFO), and he was sentenced to 20 years in prison, the maximum allowable

sentence.74 During the penalty phase, the circuit court clerk testified to

Martin’s criminal history by reading his convictions from final judgments; the

clerk did not mention originally-charged higher offenses that were amended to

lesser offenses resulting in convictions, neither did the trial court nor the

prosecutor.75 However, copies of the final judgments were introduced into

evidence as documentary exhibits, and they did contain references to original

charges that were ultimately dismissed or amended to lesser offenses.76

After considering the circumstances in Blane and Chavies, Martin

reasoned that there was only the possibility that the jurors looked at the

judgments and learned of Martin’s amended original charges and dismissed

73 Id. at 115.
74 409 S.W.3d at 342, 348.
75 Id. at 348.
76 Id.

30
charges, but even if the jury had become aware of the original charges

underling Martin’s prior convictions, it was unlikely that such knowledge

affected the resulting sentence. Martin had six prior felony convictions, some

of which were for drug-related offenses, including trafficking. The Court

concluded that when considering Martin’s past convictions in conjunction with

his current conviction for drug trafficking, there was not a reasonable

possibility that, but for the admission of prior charges which were dismissed or

amended, a different sentence would have been imposed for the enhanced first-

degree trafficking conviction.77

The Commonwealth points out that in this case, although there was

testimony that Eapmon’s conviction for facilitation to murder was amended

down from a murder charge, the amended charge was never referenced again

and the dismissed charges were never referenced again, and unlike in Blane,

the Commonwealth did not emphasize the amended charge or dismissed

charges during closing argument. Looking across these cases, in terms of the

level of attention drawn to the dismissed and amended charges, it is clear that

a great disparity exists between Martin and Chaives, which may be viewed as

closely related, and Blane. While the Commonwealth suggests that the facts of

this case are more like Martin and Chaives, because the Commonwealth

elicited direct testimony which brought attention to Eapmon’s dismissed

charges and the amended murder charge, we view this case more akin to Blane

77 Id. at 349.

31
in that regard. However, here, unlike in Blane, the Commonwealth did not

urge the jury to consider the amended murder charge as Eapmon’s

unsuccessful opportunity to learn from his mistake because Eapmon was again

charged with murder.

Eapmon has a high bar to overcome in order to receive relief based upon

this claim of error. As stated above, he must show a reasonable possibility

that, but for the error, a different sentence would have been imposed. Even

though the jury was aware of dismissed PFO and assault charges and the

amended murder charge and the Commonwealth pointed out that Eapmon did

not plead guilty to murder but to facilitation to murder in the 2006 case, like in

Martin and Chavies, we conclude that under the circumstances of this case and

given Eapmon’s prior convictions, it is not a reasonable possibility that a

different sentence would have been imposed for the two murder convictions if

the jury had not heard about prior dismissed charges and the amended charge.

Eapmon shot and killed the two victims while they were asleep in their bed.

Given these underlying crimes, a prior facilitation to murder conviction, and

other felony convictions including receiving stolen property with a value greater

than three hundred dollars, possession of a handgun by a convicted felon,

assault in the first degree, burglary in the third degree, tampering with

physical evidence and being a persistent felony offender, the error did not

result in manifest injustice.

32
V. The Commonwealth’s Remark During Closing Argument Was Not a
Comment On Eapmon’s Silence.

Eapmon’s last argument is that the Commonwealth’s remarks in closing

argument impermissibly called attention to his silence.

During closing argument, the Commonwealth played a clip from

Eapmon’s interview with Detective Embry during which Eapmon talked about

Carolyn. Afterward, the Commonwealth stated, “Sounds like someone with a

grudge. Ladies and gentlemen, she’s dead and he’s still talking about how

much he hates her. So what are we left with? We only have Jimmy’s version of

what happened.” After the trial court denied defense’s motion for a mistrial,

the Commonwealth continued, “No one contradicted Jimmy’s facts he gave

you.”

The Fifth Amendment guarantees that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.”78 Accordingly,

“[t]he Commonwealth is prohibited from introducing evidence or commenting in

any manner on a defendant’s silence once that defendant has been informed of

his rights and taken into custody.”79 However,

it is clear that not every isolated instance referring to post-arrest
silence will be reversible error. It is only reversible error where
post-arrest silence is deliberately used to impeach an explanation
subsequently offered at trial or where there is a similar reason to
believe the defendant has been prejudiced by reference to the
exercise of his constitutional right. The usual situation where

78 U.S. Const. amend. V.
79 Hunt v. Commonwealth, 304 S.W.3d 15, 35–36 (Ky. 2009) (citations omitted).

33
 reversal occurs is where the prosecutor has repeated and
emphasized post-arrest silence as a prosecutorial tool.80

Clearly, at the point of the objection, the Commonwealth did not make a

direct comment on Eapmon’s invocation of his right to remain silent. In full

context, examination discloses that the prosecutor’s comments were a

comment on the fact that Eapmon did not present any witnesses or evidence

contradicting Jimmy’s testimony.81 We do not agree with Eapmon that the

Commonwealth’s remark was an improper comment on Eapmon’s silence.

Nevertheless, even if it were, any improper comment was transient and was not

emphasized. Considering the evidence properly presented to establish

Eapmon’s guilt, we cannot conclude that Eapmon was prejudiced by the

Commonwealth’s remark.82 Any error was harmless beyond a reasonable

doubt.83

CONCLUSION

For the foregoing reasons, the Kenton Circuit Court judgment is affirmed.

All sitting. All concur.

80 Id. (quoting Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky. 1983)).
81 See Murphy v. Commonwealth, 509 S.W.3d 34, 53 (Ky. 2017).
82 See Baumia v. Commonwealth, 402 S.W.3d 530, 539-40 (Ky. 2013) (citing
factors in United States v. Velarde–Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001)).
83 Chapman v. California, 386 U.S. 18, 24 (1967).

34
COUNSEL FOR APPELLANT:

Shannon Renee Dupree
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron
Attorney General

Thomas Allen Van De Rostyne
Assistant Attorney General

35