Cody Alan Arnett v. Commonwealth of Kentucky

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 RENDERED: OCTOBER 26, 2023
NOT TO BE PUBLISHED

Supreme Court of Kentucky
2022-SC-0006-MR

CODY ALAN ARNETT APPELLANT

ON APPEAL FROM SCOTT CIRCUIT COURT
V. HONORABLE JEREMY MICHAEL MATTOX, JUDGE
NO. 18-CR-00304

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Following a jury trial in Scott Circuit Court, Cody Alan Arnett was

convicted of one count of burglary in the first degree, three counts of rape in

the first degree, two counts of sodomy in the first degree, and one count of

tampering with physical evidence. On each of the burglary, rape and sodomy

charges, Arnett was sentenced to twenty years’ imprisonment, enhanced to life

because he was adjudged to be a first-degree persistent felony offender (PFO-1).

On the tampering conviction, he received a five-year sentence, enhanced to

twenty years’ given his PFO-1 status. Arnett now appeals his conviction as a

matter of right, alleging juror selection errors, trial errors and penalty phase

errors. Finding none of his contentions meritorious, we affirm his convictions

and sentences.
 I. FACTUAL AND LEGAL BACKGROUND

On September 22, 2018, Arnett, who was thirty-three years old, spent

the day drinking and later that evening went to a bar in Scott County,

Kentucky where he consumed approximately eight more drinks. Arnett left the

bar and drove to a nearby college campus. Arnett walked around an area of the

campus containing student housing. Arnett’s version of the events that

followed are starkly different from that of the female student he would

encounter. 1

According to Arnett’s testimony, while wandering drunk around student

housing, an eighteen-year-old female student saw him and invited him into her

on-campus apartment which was a two-story townhouse that she shared with

four other students. Once inside the apartment, according to Arnett, he and

the female student sat on the couch and after he put his hand on her thigh,

she started kissing him, undid his pants, and initiated oral sex. Arnett testified

the two then attempted to have sex on the couch, moved to the floor, and then

back to the couch. He testified he was not sure if he ejaculated because he was

taking a muscle relaxer. Arnett then said he went into the bathroom to crush

another pill on a hard surface. According to Arnett, the female student initiated

sex yet again in the bathroom where Arnett said that he began acting like “an

asshole” because he was embarrassed by not being able to achieve an erection

1 To most effectively protect the identity and privacy of the victim, she will be

referred in this opinion only as “the female student” or “the victim,” and the witnesses
and locations will also be given generic identities.

2
and began making vile sexual statements about the student. Arnett testified

that the female student left the bathroom but returned screaming and then

stabbed him with a knife in neck and thigh. She then took a shower while

Arnett attempted to clean his wounds. Next, another female and a male

knocked on the door, looked in and asked if the female student was “okay” to

which she responded in the affirmative.

Arnett stated he then grabbed his belongings and left the apartment

where he encountered a campus security officer who was soon joined by a

police officer. According to Arnett, he said nothing about being stabbed by the

female student because he did not want to get her in trouble.

The female student testified she had fallen asleep on the sofa in her dorm

sometime after 1:00 a.m. on the morning of September 23, 2018, after being

the designated driver for fellow members of her college volleyball team. She was

awakened on the sofa by a man she had never seen before covering her mouth

with his hand, holding a knife to her throat, and threatening her saying “don’t

make a sound or I’ll slit your throat.” Arnett pulled off her pants, put his

fingers inside her, put his mouth to her genitals, shoved his penis in her

mouth, and raped her.

According to the female student, after Arnett ejaculated, he put the knife

to her spine and walked her to the bathroom where he turned on the shower

and forcibly cleaned her saying, “[n]ow there’s no evidence.” However, the

assault did not end and Arnett raped her again, forced his penis into her

mouth again, and again put his mouth to her genitalia. During this second

3
prolonged assault, the victim grabbed Arnett’s knife which he had laid on the

counter of the bathroom and struck him in the throat and screamed. Arnett

then punched her and tried to put her in a chokehold. The victim stabbed

Arnett again, this time in the leg and then retreated into the shower stall. The

victim’s screams during her struggle awakened others in the apartment. In the

shower, victim heard one of her roommates calling her name. Arnett locked the

bathroom door and said, “[y]ou really want to die, don’t you” and “[d]on’t say a

word!” Given these threats, the victim responded to her roommate by saying

she was taking a shower. Arnett gathered his belongings and left the apartment

where he encountered campus security and police.

On the night in question, four of the victim’s roommates were in the

apartment along with the boyfriend of a roommate. Three of the roommates

and the boyfriend were in the two upstairs bedrooms and a downstairs

bedroom was occupied by the fourth roommate. One upstairs roommate

testified that when she went to bed, the victim was on the couch downstairs.

The downstairs roommate testified that the victim was asleep on the couch

when the downstairs roommate shut off the downstairs lights around 2:30 a.m.

The downstairs roommate did not remember locking the door or checking to

see if it was locked.

Three of the roommates and the boyfriend all testified that they awoke

when they heard a scream at about 5:00 a.m. One roommate described victim’s

scream as “the worst scream I’ve ever heard in my life.” Another roommate

testified that the scream was “blood curdling” and when she went to the stairs

4
to peek over the banister, she heard a voice say “[n]ow look what you did, you

woke them up.” She also stated that the downstairs roommate ran up the

stairs and said there was someone in her bathroom.

The roommate who had a boyfriend present went downstairs with the

boyfriend and knocked on the bathroom door. She testified that the third time

she knocked, the victim answered by saying “I’m just taking a shower.” The

boyfriend testified that while the victim did not ask for help, he thought

“something was off in her voice.” The roommate peered in the door and saw a

man behind the door glaring at the shower. She then ran back upstairs and

told her roommates to call 911 and campus safety.

The roommates testified they stayed upstairs until they heard the voices

of responders who had detained Arnett outside the apartment. The four female

roommates took the victim upstairs to get her dressed and called her father.

Arnett challenges his convictions based on seven alleged errors. He

alleges two juror selection errors: (1) the jury panel was tainted, and (2) a juror

was wrongfully struck. He alleges three trial errors: (1) the jury should have

been allowed to visit the crime scene; (2) hearsay testimony was wrongfully

admitted; and (3) the sodomy instructions violated his right to a unanimous

verdict. Finally, he alleges two penalty phase errors: (1) the jury was given

incorrect information regarding parole eligibility; and (2) the jury should not

have been given information about his prior indictments.

5
 II. ANALYSIS

A. Did the Trial Court Abuse its Discretion by Ruling that the Jury
Panel had not Been Tainted? – Preserved

Arnett argues that a potential juror (called to replace a juror previously

excused) whose responses to questioning in front of the jury pool were that she

was a nurse practitioner who worked with rape victims in the past collecting

evidence, had “see[n] the aftermath of what happens with these victims,” and

responded with “probably” to the court’s query as to whether her experiences

would affect her ability to serve as a juror in the case, had “tainted” the rest of

the jury pool.

Arnett’s counsel moved to strike this potential juror for cause which the

trial court granted. Counsel then objected that this potential juror had tainted

the overall jury pool. The trial court did not agree, determined that her

statements were “very generic,” and stated that it could not infer that her

statements tainted the jury. No admonition was requested by Arnett’s counsel.

A trial court has broad discretion in determining whether a jury panel

should be dismissed, King v. Commonwealth, 374 S.W.3d 281, 288 (Ky. 2012),

and the exercise of that discretion should be based upon the totality of the

circumstances, Tabor v. Commonwealth, 948 S.W2d 569, 572 (Ky. App. 1997).

The test for abuse of discretion is whether the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

6
 Based upon the statements made by the potential juror, we cannot agree

with the premise that such statements tainted the jury or affected, in any way,

the outcome of the trial.

B. Did the Trial Court Erroneously Grant the Commonwealth’s
Motion to Strike a Juror Who could have been Fair and
Impartial? - Preserved

Arnett argues that the trial court abused its discretion in striking one

juror for cause over his objection.

During voir dire, one potential juror raised his hand when the

Commonwealth questioned the panel about whether any member might have

difficulty convicting a defendant if the Commonwealth met its burden of proof

in proving all the elements of the crime, but he or she still had unresolved

doubts about factual matters that were not elements of the crime.

The same juror who had raised his hand was later called to the bench

because he had failed to disclose an Interpersonal Protective Order (IPO) taken

out against him. He acknowledged the IPO and stated that he had been unsure

whether he needed to volunteer that information since it was neither a

misdemeanor nor a felony. During this discussion, the Commonwealth

questioned the potential juror about the earlier questions posed in voir dire and

whether he would hold the Commonwealth to a higher burden of proof than

necessary under the instructions. In response, he acknowledged he could get

distracted by details that were not elements of the crime and that he could “get

hung up” on unanswered questions regarding factual matters that were not

elements of the crime. As an example, the following exchange occurred:

7
 Commonwealth’s Attorney: But the question is and I think you’ve
answered it but yet again, if all we have to prove is 1, 2, and 3, but
7, 8, and 9 go unanswered is that . . .

Juror: In my mind.

Commonwealth’s Attorney: Going to cause you a problem?

Juror: In my mind yeah.

Arnett’s counsel questioned the man as well but his answers to

questioning regarding his ability to strictly follow the jury instructions on the

elements of an offense remained equivocal. The trial court granted the

Commonwealth’s motion to strike the man for cause over the objection of

Arnett’s counsel.

Kentucky Rules of Criminal Procedure (RCr) 9.36 states, “[w]hen there is

reasonable ground to believe that a prospective juror cannot render a fair and

impartial verdict on the evidence, that juror shall be excused as not qualified.”

“The decision about whether to strike a juror for cause is within the sound

discretion of the trial court.” Emmott v. Commonwealth, 230 S.W.3d 563, 567

(Ky. 2007).

Here, the potential juror was obviously trying to be honest in answers

and the trial court was correct in its concern regarding his confusion and his

ability to objectively determine guilt in accordance with instructions. Based

upon the potential juror’s uncertain responses to questions regarding his basic

ability to function as a juror, the trial court’s decision to strike him for cause

cannot be viewed as either erroneous or an abuse of its broad discretion.

8
 C. Did the Trial Court Abuse its Discretion by Denying Arnett’s
Motion to Have the Jury Visit the Crime Scene? – Preserved

Arnett argues that the trial court abused its discretion by denying his

counsel’s pretrial motion to have the jury visit the crime scene given the

relatively short distance between the courthouse and the apartment and the

apartment at the college.

Kentucky Revised Statutes (KRS) 29A.310(3) states, “[w]hen necessary

the judge may authorize the jury to view the real property which is the subject

of the litigation, or the place in which any material fact occurred, or the place

in which the offense is charged to have been committed.” In Kentucky we have

long ruled that a trial court does not abuse its discretion in denying such a

motion when the jury is provided with ample photographic evidence with which

to familiarize itself with the scene. Tungate v. Commonwealth, 901 S.W.2d 41,

44 (Ky. 1995).

Twenty-five photographs of the apartment were admitted together with

both a floorplan and blueprint of the apartment unit. Arnett cannot

satisfactorily articulate how a visit to the apartment could have possibly offered

a more persuasive defense than that which his counsel provided via the

photographic materials submitted into evidence and his counsel’s cross-

examination of the witnesses. Under these facts, there was no abuse of

discretion by the trial court regardless of the distance between the courthouse

and the crime scene. While a trial court can weigh all the logistics of such a

visit, that distance factor alone is not determinative and does not make such a

visit “necessary” under the statute.
9
 D. Did the Trial Court Abuse its Discretion by Determining Certain
Hearsay Testimony was Permissible as Excited Utterances? –
Preserved

Arnett argues that the trial court abused its discretion by allowing a

responding officer to recount statements made to her by the victim under the

“excited utterance” exception to our rules against the admission of hearsay

testimony. Specifically, he argues the statements were made by the victim in

response to questions posed by the officer and could therefore not fall within

this exception. On appeal, a trial court’s decision to admit or exclude hearsay

statements is reviewed for abuse of discretion. Mason v. Commonwealth, 559

S.W.3d 337, 342 (Ky. 2018).

The trial court overruled this objection and allowed the statements to be

admitted as excited utterances owing to the fact that the statements were made

within the first few minutes after the officer arrived on the scene which was

immediately following the commission of the crimes. The officer in question

testified she arrived in time to see Arnett exiting the victim’s apartment, almost

immediately detained Arnett, saw the victim exit the apartment wet and in a

towel while holding the knife, crying hysterically, and shouting “he raped me”

repeatedly. When fellow officers arrived within a minute of the officer’s arrival,

she went inside to check on the victim who told her what happened.

On cross examination, the officer testified she had asked the victim what

happened prior to the victim’s statements. Arnett’s counsel then moved the

court to strike the officer’s testimony as being responsive to questioning

therefore making the excited utterances exception inapplicable. At that

10
juncture, the trial court determined to allow the officer to finish her testimony

and the court would thereafter review caselaw to determine the merit of the

objection.

On redirect, the officer clarified the full factual context of her testimony

testifying she found the victim upstairs in the apartment putting on clothes

and asked her if she had showered. In response, the victim stated that Arnett

had forced her to shower but that she had not brushed her teeth. Then, in

response to being asked whether victim was injured, the victim stated to the

officer that she had been struck in the head by Arnett and began verbalizing

the extent of the attacks she had suffered.

The trial court ultimately denied Arnett’s motion to strike, determining

that the testimony could come in as excited utterances. The court explained its

ruling by stating that questions posed by the officer were “basic” types of

questions and the scope of the responses made by the victim were unexpected.

Further, even though the statements were made in response to questions, there

were enough factors weighing in favor of admission such as the immediacy of

the statements relative to the crime, the victim’s state of excitement, the lack of

an opportunity for fabrication, and the visible signs of an assault occurring, to

allow the statements.

Hearsay is an out of court statement offered into evidence to prove the

truth of the matter asserted and hearsay statements are inadmissible unless

they fall within certain recognized exceptions. One of the exceptions is for

“excited utterances” which are statements “relating to a startling event or

11
condition made while the declarant was under the stress of excitement caused

by the event or condition.” Kentucky Rules of Evidence (KRE) 803(2). The basis

for this exemption is that “statements made under the stress of the excitement

caused by a startling occurrence are more likely the product of that excitement

and, thus, more trustworthy than statements made after the declarant has had

an opportunity to reflect on events and to fabricate.” Noel v. Commonwealth, 76

S.W.3d 923, 926 (Ky. 2002).

In Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky. 1998), we listed

eight factors a trial court might consider in determining whether a hearsay

statement is admissible as an excited utterance under KRE 803(2):

(i) lapse of time between the main act and the declaration, (ii) the
opportunity or likelihood of fabrication, (iii) the inducement to
fabrication, (iv) the actual excitement of the declarant, (v) the place of the
declaration, (vi) the presence there of visible results of the act or
occurrence to which the utterance relates, (vii) whether the utterance
was made in response to a question, and (viii) whether the declaration
was against interest or self-serving.

The record is clear that the trial court gave proper consideration to the

circumstances surrounding the victim’s statements, including the fact

questions had been posed to the victim immediately following prolonged and

violent sexual assaults, and weighed the factors bearing on its determination

before concluding correctly that the excited utterance exception applied. The

trial court therefore did not abuse its discretion in admitting the victim’s

statements through the officer.

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 E. Did the Jury Instructions on the Two Counts of Sodomy Violate
Arnett’s Right to a Unanimous Verdict? – Unpreserved.

Arnett next alleges he was denied his right to a unanimous jury verdict

regarding his two convictions for first degree sodomy. Section 7 of the Kentucky

Constitution guarantees criminal defendants the right to unanimous jury

verdicts. Alleged unanimity errors are questions of law and are therefore

reviewed de novo. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015), overruled

on other grounds by University Medical Center, Inc. v. Schwab, 628 S.W.3d 112

(Ky. 2021).

Arnett’s counsel made no objection to either of the two sodomy

instructions and therefore requests palpable error review under RCr 10.26

which we shall perform here. “[A] palpable error affecting the substantial rights

of a party, even if insufficiently raised or preserved, is reviewable, and, upon a

determination that it has resulted in manifest injustice, reversible.” Deemer v.

Finger, 817 S.W.2d 435, 437 (Ky. 1990). For an error to be palpable, and

require reversal, it must be “shocking or jurisprudentially intolerable.” Martin v.

Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).

Arnett specifically argues that two jury instructions, presented to the

jury for the two separate counts of first-degree sodomy, made it “possible that

the jurors used the same incident of when ‘the Defendant used his mouth to

lick [victim’s] vagina’ to convict him on both counts, in violation of double

jeopardy.” According to the Arnett, a unanimity error occurred for two reasons.

First, because the language regarding where each crime occurred is located

13
after a conjunctive “OR” in the instructions caused a lack of “differentiating

detail. . . to contextualize where and when Cody committed [the] particular

act.” Second, the “instructions did not require all the jurors to agree on which

act they were convicting him of committing.”

“[A] general jury verdict based upon a single instruction convicting a

criminal defendant of a crime when two or more separate instances of that

single crime were presented at trial violates the requirement of a unanimous

verdict.” Ruiz v. Commonwealth, 471 S.W.3d 675, 678 (Ky. 2015), as modified

(Oct. 29, 2015) (citing Johnson v. Commonwealth, 405 S.W.3d 439, 449 (Ky.

2013)).

Here, Jury Instruction No. 9 (Count V) stated:

You will find the Defendant. Cody A. Arnett guilty of First-
Degree Sodomy 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 23rd day of
September, 2018 and before the finding of the Indictiment
herein, he engaged in deviate sexual intercourse with
[victim] when the Defendant used his mouth to lick
[victim’s] vagina OR when he inserted his penis into
[victim’s] mouth on the couch in the living room of a
building located on the campus of Georgetown College in
Scott County, Kentucky which was occupied at that time
by [victim]; AND

B. That he did so by forcible compulsion.

Jury instruction No. 10 (Count VI) was a verbatim copy of the preceding

instruction except instead of saying “on the couch in the living room,” it stated

the event occurred “in the bathroom on the first floor.”

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 Regarding Arnett’s first assignment of error, that the instructions were

vague in relation to the locations of the alleged criminal acts, we find that the

instruction did not invite a unanimity error. A clear reading of either

instruction makes it known that criminal events alleged occurred in two

distinctly separate locations.

A more complex issue however is presented in Arnett’s second

assignment of error: What precise act formed the basis of the finding of guilt in

either instruction?

KRS 510.070, partially quoted in the jury instructions, criminalizes three

distinct acts. A person is guilty of first-degree sodomy when “[h]e engages in

deviate sexual intercourse with another person by forcible compulsion . . . .”

KRS 510.070(l)(a). In turn, “deviate sexual intercourse” is defined in our

Commonwealth as “any act of sexual gratification involving the sex organs of

one person and the mouth or anus of another; or penetration of the anus of

one person by a foreign object manipulated by another person . . . .” KRS

510.010(1). This definition “include[s] any act of fellatio, cunnilingus or anal

intercourse.” KRS 510.010 cmt.

In this case, the evidence at trial supported Arnett committing at least

two forcible act of cunnilingus and two forcible acts of fellatio in violation of

KRS 510.070(1)(a). Adding to the jury’s inquiry was the fact that both forcible

acts (fellatio and cunnilingus) could have occurred in both, or either, locations

15
(the living room and/or the bathroom). 2 If the jury determined that both

criminal acts took place in both locations, such finding would have supported

four separate convictions for first degree sodomy when Arnett was only indicted

for, and found guilty of, two counts of first degree sodomy.

On their face, these instructions would clearly allow a jury to find Arnett

guilty of first-degree sodomy whether it was believed he had forcibly compelled

fellatio or cunnilingus in either location. This presents a case of a “multiple

acts” error in the instructions where “the instruction does not specify which

specific act it is meant to cover, [and] we cannot be sure that the jurors were

unanimous in concluding the defendant committed a single act satisfying the

instruction.” Martin v. Commonwealth, 456 S.W.3d 1, 7 (Ky. 2015), abrogated

on other grounds by Sexton v. Commonwealth, 647 S.W3d 227 (Ky. 2022).

To explain: If half the jury determined Arnett compelled fellatio on the

victim, but not cunnilingus, and the other half of the jury decided he had

forced cunnilingus but not fellatio, he could be found guilty of first-degree

sodomy even if there was no consensus on which particular unlawful act he

had committed. This presents a clear unanimity error. The sodomy instructions

2 Regarding the assault which occurred in the living room (Instruction No. 9), at

trial Arnett testified that the female student performed fellatio on him in the living
room. The victim testified that Arnett forced both cunnilingus and fellatio on her in the
living room. With regard to the assault occurring the bathroom (Instruction No. 10),
Arnett testified that the female student performed fellatio on him in the bathroom.
When questioned about the possibility of him performing cunnilingus on the student
in both the bathroom and living room, Arnett admitted that such could have occurred
but that he was unsure. The victim testified that Arnett forced both fellatio and
cunnilingus on her in the bathroom.

16
presented in this case failed to simply specify which, of a possible two, criminal

acts Arnett was accused of committing. We must caution trial courts that

instructions should specify the precise alleged acts which constitute the

criminal offense at issue in the cases before them.

We therefore hold that the instructions in this case were erroneous

because the proof at trial demonstrated “two or more separate instances of a

criminal offense” for each of the two charges of first-degree sodomy. Johnson v.

Commonwealth, 405 S.W.3d 439, 449 (Ky. 2013).

Having concluded the instructions were erroneous, we must now

determine whether the errors were palpable. In our recent decision in Johnson

v. Commonwealth, 2021-SC-0541-MR, 2023 WL 4037845 (Ky. June 15, 2023),

we stated both our process of review and the standard of review in matters

such as this.

In all cases presenting an unpreserved error regarding a
unanimous jury, the courts must “plumb the depths of the
proceeding” and scrutinize the factual idiosyncrasies of the
individual case. That includes a consideration of the weight of the
evidence. Only if, upon review, a court can conclude “the error is
so manifest, fundamental and unambiguous that it threatens the
integrity of the judicial process,” will reversal be warranted. “It
should be so egregious that it jumps off the page . . . and cries out
for relief.”

Id. at *8 (citations omitted).

As pointed out by the Commonwealth, there is little discussion of the

jury instructions in the record. The trial court requested that defense counsel

submit proposed instructions and stated that the parties would discuss the

17
instructions with the court prior to closing arguments. Thereafter, the trial

court stated that while the jury took a break at the close of proof, the parties

would finalize the instructions. This Court was unable to locate any

instructions submitted by defense counsel in the written record and no other

discussions regarding the instructions were located in the video record.

Given the testimony presented at trial, Arnett could have been convicted

of four counts of first-degree sodomy. One count for forced cunnilingus in the

living room, a second count for forced fellatio in the living room, a third count

for forced cunnilingus in the bathroom, and a fourth count for forced fellatio in

the bathroom. Arnett’s defense was that all the sexual acts recounted,

regardless of location, were entirely consensual. This “all or nothing” defense

was the critical issue for the jury. Arnett giving and receiving oral sex, in both

locations, was secondary at best. The outcome in this trial hinged not only on

the physical evidence presented and what witnesses saw, but on the relative

credibility of the victim and accused juxtaposed against the other witnesses

and the physical evidence presented. Given the jury’s wholesale repudiation of

Arnett’s objectively unbelievable defense, we have no reason to doubt that had

Arnett been indicted for four counts of sodomy, instead of two, he would have

been found guilty of all four offenses.

It is only against this factual and evidentiary backdrop that we conclude

that the potential unanimity error presented by the instructions were not “so

manifest, fundamental and unambiguous that it threatens the integrity of the

judicial process.” Johnson v. Commonwealth, 2021-SC-0541-MR, 2023 WL

18
4037845, at *8 (Ky. June 15, 2023) (citing Martin v. Commonwealth, 207

S.W.3d 1, 5 (Ky. 2006)). Arnett wholly fails to persuade us that there is any

probability that, but for the language in these instructions, a different result

would have occurred, and he would not have been convicted on these two

counts. Finally, in addition to these two sodomy convictions, Arnett received

four other concurrent life sentences and, therefore, those convictions do not

extend his total sentence.

F. Was Arnett Unduly Prejudiced by the Presentation of Incorrect
Information Regarding his Parole Eligibility during the Penalty
Phase of the Trial? - Unpreserved.

Arnett argues that he is entitled to a new penalty phase because the

Commonwealth presented incorrect parole eligibility information when the

probation and parole officer testified the parole board could not order a “serve-

out.” The Court of Appeals in Simmons v. Commonwealth, 232 S.W.3d 531 (Ky.

App. 2007), and other subsequent unpublished cases, has acknowledged that

the parole board has the power to order serve outs for inmates with life

sentences. 3 This error was not preserved by contemporaneous objection and

Arnett again requests palpable error review pursuant to RCr 10.26.

On direct examination, a probation and parole officer correctly testified

that the parole board has three options when reviewing an offender’s parole

3 The Supreme Court has yet to weigh in on this issue, but it has accepted

discretionary review in Conn v. Kentucky Parole Board, 2022-SC-0198-DG, of a Court
of Appeals opinion which follows Simmons. See Conn v. Kentucky Parole Board, 2020-
CA-1495-MR, 2022 WL 1194186 (Ky. App. Apr. 22, 2022) (not final due to pending
appeal).

19
eligibility; the parole board could grant Arnett parole, issue a deferment, 4 or

order a “serve-out.” The administrative regulations define “serve-out” as “a

decision of the board that an inmate shall serve until the completion of his

sentence.” 501 Kentucky Administrative Regulations (KAR) 1:030 § 1(10). What

this means in practical terms is that after an inmate appears before the parole

board for the first time, the parole board can preclude that inmate from ever

being considered for parole by it again. The probation and parole officer also

correctly testified that if Arnett received six life sentences, he would be eligible

for parole after serving twenty years.

Under later questioning by Arnett’s counsel, the parole officer stated that

she did not believe the parole board could give the offender a complete serve-

out. The officer was notably hesitant in her answer as to what she thought the

parole board could do and the Commonwealth, recognizing a concern, asked to

approach the bench. The trial court admonished the parole officer to “not

speculate” and Arnett’s counsel resumed questioning and the parole officer’s

responses affirmatively agreed with Arnett’s counsel that once Arnett was

eligible for parole, he could be deferred for ten years and then ten years later

could receive another ten-year deferment so that “in theory” a serve-out could

happen. Arnett’s counsel was apparently satisfied by this testimony and

elicited no further testimony in this area and did not seek any admonishment

4 KRS 439.340(14)(b) limits deferments to a maximum of ten years, “except for

life sentences,” and 501 KAR 1:030 § 3(2)(b) states that “[t]he board, at the initial or a
subsequent review, may order a serve-out on a sentence.”

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or instruction to the jury from the trial court despite the fact that it was

defense counsel who invited speculation on this topic.

Considering the officer’s testimony and the sentencing phase as a whole

without isolating the portion Arnett challenges, the record reveals that overall

the jury was accurately informed of Kentucky’s parole eligibility scheme and

was made to understand that no inmate is guaranteed parole and could very

well serve the entirety of the sentence determined by the jury; the very point

Arnett’s counsel was trying to make.

Given the scope of the horrific sexual, physical and emotional violence

committed by Arnett, for which the jury unanimously found him guilty, and the

totality of the penalty phase evidence presented, we do not believe a substantial

probability exists that the jury would have recommended a lighter sentence

had the parole officer’s testimony about serve-outs been omitted or had the

parole officer stated that the parole board could indeed order a serve out after

Arnett appeared before it for the first time. Although the parole officer’s

testimony was not entirely accurate, the jury understood that Arnett might

indeed have to serve the entirety of his life sentences. As a result, Arnett has

failed to show any palpable error occurred or that reversal on this claim of

error is warranted.

G. Did the Commonwealth Improperly Introduce Documents to the
Jury Containing Inadmissible Information During the Penalty
Phase? – Unpreserved.

Lastly, Arnett argues that the Commonwealth introduced certified copies

of not only Arnett’s prior convictions, but also the underlying indictments in

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violation of Mullikan v. Commonwealth, 341 S.W.3d 99, 101 (Ky. 2011). This

error was not preserved and Arnett again requests palpable error review

pursuant to RCr 10.26.

In 2006, in Jessamine County, Arnett was indicted for driving under the

influence, fleeing or evading first degree, and theft of identity first degree. His

judgment noted dismissal of the fleeing or evading charge. In 2007, also in

Jessamine County, Arnett was indicted for robbery in the first degree and being

a persistent felony offender. The judgment from that matter stated “robbery

second degree as amended.” In 2015, in Fayette County, Arnett was indicted

for two counts of robbery in the first degree, one count of fleeing and evading,

and PFO-2. The final judgment in that matter notes that the fleeing and

evading charge was dismissed and both robbery counts were amended to

robbery in the second degree.

The documents containing this information were introduced to the jury

during its consideration of Arnett’s PFO status. These materials were shown to

Arnett’s counsel prior to their presentation to the jury and counsel offered no

objection.

KRS 532.055(a) provides a listing of the “[e]vidence [that] may be offered

by the Commonwealth relevant to sentencing.” With regard to prior offenses,

such evidence may include, “[t]he nature of prior offenses for which he was

convicted” (KRS 532.055(a)(2)), and “[t]he date of the commission, date of

sentencing, and date of release from confinement or supervision from all prior

offenses.” KRS 532.055(a)(3). In Mullikan, we commented on our Court’s history

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of defining the scope of evidence of prior offenses which may be presented,

stating that “[t]his Court has been struggling for the last fifteen years, through

a series of cases, to define permissible evidence which may be introduced

describing the ‘nature of prior offenses.’” 341 S.W.3d at 108. Beginning with

Robinson v. Commonwealth, 926 S.W.2d 853 (Ky. 1996), this Court went to

great lengths in attempting to define the “nature of prior offenses” settling upon

“description of a general character” as being as far as is allowed in dealing with

these prior crimes. In Mullikan, it was held that “the evidence of prior

convictions is limited to conveying to the jury the elements of the crimes

previously committed” and went on to advise that “[w]e suggest this be done

either by a reading of the instruction of such crime from an acceptable form

book or directly from the Kentucky Revised Statute itself.” 341 S.W3d at 109.

Clearly the documentation which contained Arnett’s original charges, for

which he was not ultimately convicted, should not have been shared with the

jury as such documents conveyed information that fell well outside the

permissible scope we have established. Trial courts need to be, and remain,

mindful of our advisements in this area as there will be circumstances the

extraneous information contained in court records can prove to be unduly

prejudicial to defendants and require reversal.

However, such an error—standing alone—is not sufficient for relief

under RCr 10.26, where an appellant must demonstrate that his substantial

rights were affected by an error at trial that was manifest, fundamental and

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unambiguous so as to threaten the integrity of the judicial process

itself. Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013).

Neither the trial court nor the Commonwealth referenced or discussed

the original charges in the indictments and we will also not, as Arnett requests,

infer that a palpable error occurred here due to the lone fact that Arnett

received the maximum sentences for his crimes. In the full context of the

crimes Arnett committed, and the overwhelming evidence presented against

him, such a presumption or inference is unreasonable. Arnett cannot establish

that the mere presence of these underlying indictment materials the jury

received had any impact on the jury’s decision nor would we expect them to

have any impact given the similar nature of the original charges juxtaposed

against Arnett’s ultimate convictions. Therefore, we cannot find the extraneous

evidence to have created a palpable error.

III. CONCLUSION

Upon review of the record in this matter, we are confident that Arnett

received an appropriate trial and was properly convicted under the totality of

the overwhelming evidence presented supporting each verdict. Accordingly, we

affirm his convictions and sentences by the Scott Circuit Court.

All sitting. VanMeter, C.J.; Bisig, Keller, Lambert, Nickell, and

Thompson, JJ., concur. Conley, J., concurs by separate opinion.

CONLEY, J., CONCURRING: The testimony of the officer relating the

victim’s statements are not an excited utterance in my opinion. The victim gave

her statements to the officer in response to the officer’s questions. She was in

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an upstairs room, putting on clothes, after Arnett had been detained. The fact

that the victim’s answers were more responsive than the officer’s questions

may have called for do not make them excited utterances. I would hold this

testimony was textbook hearsay—out-of-court statements by a third party used

to prove the truth of the matter asserted. KRE 801(c). But because the victim

testified at trial and was subject to cross-examination, the admittance of these

statements was harmless.

COUNSEL FOR APPELLANT:

Molly Mattingly
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron
Attorney General

Courtney J. Hightower
Assistant Attorney General

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