Paul Jason Walker v. Commonwealth of Kentucky

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 RENDERED: APRIL 18, 2024
NOT TO BE PUBLISHED

Supreme Court of Kentucky
2022-SC-0562-MR

PAUL JASON WALKER APPELLANT

ON APPEAL FROM WARREN CIRCUIT COURT
V. HONORABLE JOHN R. GRISE, JUDGE
NO. 21-CR-00394

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant Paul Jason Walker was found guilty by a Warren County jury of

multiple sexual crimes against his daughter. As recommended by the jury, the

trial court sentenced Walker to a total of twenty-four years in prison. Walker

brings four issues on appeal. He claims that the trial court erred by: 1)

denying his motion to continue the trial; 2) refusing to strike a certain juror for

cause; 3) prohibiting the defense to interrogate the victim on cross-examination

about being molested by her grandfather; and 4) allowing the lead detective to

comment on Walker’s invocation of his Fifth Amendment right against self-

incrimination. 1 Upon review, we affirm the Warren Circuit Court’s judgment.

1 Walker also seeks reversal of his conviction based upon cumulative error. As

to the first three errors alleged by Walker, we conclude that the trial court did not
abuse its discretion. As to the fourth and unpreserved error, we conclude that if error
occurred, palpable error relief was not warranted. “We have found cumulative error
 FACTUAL AND PROCEDURAL BACKGROUND

In May 2021, Walker was indicted on multiple counts of sexual abuse

against his minor daughter A.W. In January 2022, the trial court scheduled

Walker’s trial to begin July 19, 2022. On July 12, 2022, Walker filed a motion

to continue the trial, indicating he had recently received companion

Dependency, Neglect, and Abuse (DNA) cases 2 for Walker’s minor children and

a review of those cases revealed that A.W. was in counseling from the latter

part of 2020 to early 2022. Believing the therapy records would be exculpatory

in nature, Walker requested time to receive and review A.W.’s therapy records.

After hearing the motion on July 13, 2022, the trial court determined that due

to the nature of the psychotherapist/patient privilege, the trial court would

receive the records under seal and that it would review A.W.’s counseling

records for exculpatory information. On July 15, 2022, the trial court received

the counseling records and performed an in camera review and, as stated in its

order, determined that the records did not contain exculpatory information.

The trial court denied Walker’s request for production of the counseling records

and for continuation of his trial. The four-day trial commenced as scheduled.

During jury selection, one of the potential jurors, Juror 565, informed

the trial court and counsel that his sister-in-law worked in the Commonwealth

only where the individual errors were themselves substantial, bordering, at least, on
the prejudicial.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). The
cumulative error doctrine is not applicable to this case.
2 The DNA case files were initially received by Walker and provided to the

Commonwealth as part of reciprocal discovery.

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Attorney’s office as a victim’s advocate. Juror 565 stated that he did not

believe that his sister-in-law’s employment would affect his judgment. Walker

argued that the sister-in-law’s employment with the Commonwealth Attorney

created an appearance of impropriety and sufficient grounds for the juror to be

stricken for cause. The trial court denied Walker’s motion to strike. 3

A.W. testified about the abuse by her father which began when she was

in the fourth grade and continued for years. During trial, Walker advised the

trial court that it had a good faith basis to ask A.W. on cross-examination if

she had been molested by her grandfather. The basis consisted of A.W.’s sister

posting on social media that the grandfather had abused her and A.W. in the

past. The grandfather had died in 2018 and was unavailable for questions on

the issue. The trial court denied Walker’s request to cross-examine A.W. on

this issue.

Also during trial, a detective testified about his involvement in the

investigation against Walker. As the investigation progressed, the detective

determined to contact Walker to interview him. The detective testified: “We

3 In Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019), this Court clarified the procedure

for preserving the issue of whether the trial court erred by failing to strike a juror for
cause. We stated that a litigant must: (1) move to strike the juror for cause and be
denied; (2) exercise a peremptory strike on said juror, and show the use of that
peremptory strike on the strike sheet, and exhaust all other peremptory strikes; (3)
clearly indicate by writing on her strike sheet the juror she would have used a
peremptory strike on, had she not been forced to use a peremptory on the juror
complained of for cause; (4) designate the same number of would-be peremptory
strikes as the number of jurors complained of for cause; (5) the would-be peremptory
strikes must be made known to the court prior to the jury being empaneled; and (6)
the juror identified on the litigant’s strike sheet must ultimately sit on the jury. Id. at
252. Upon review of the record, we conclude this issue is properly preserved.

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spent the afternoon with the Simpson County Sheriff’s office attempting to

locate Mr. Walker and the vehicle we were told he was in. We were

unsuccessful. When I returned to work, I had a voice mail that Mr. Walker was

invoking his rights and would not be providing a statement to me.”

The jury found Walker guilty of one count of incest, 4 one count of first-

degree rape (victim less than twelve (12) years of age), 5 one count of second-

degree rape (victim less than fourteen (14) years of age), 6 one count of second-

degree sodomy (victim less than fourteen (14) years of age), 7 two counts of first-

degree sexual abuse (victim less than twelve (12) years of age), 8 and two counts

of second-degree unlawful transaction with a minor. 9 The jury recommended

that Walker serve the sentences for these crimes concurrently. In accordance

with that recommendation, the trial court sentenced Walker to prison for a

total of twenty-four (24) years.

Walker brings three preserved issues and one unpreserved issue on

appeal. The claims of error are addressed in turn.

4 The jury recommended a prison sentence of twenty (20) years.

5 The jury recommended a prison sentence of twenty-four (24) years.

6 The jury recommended a prison sentence of twenty (20) years.

7 The jury recommended a prison sentence of five (5) years.

8 On each count, the jury recommended a prison sentence of ten (10) years.

9 On each count, the jury recommended a prison sentence of one (1) year.

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 ANALYSIS

I. The trial court did not abuse its discretion when it denied Walker’s
motion to continue the trial.

Walker’s first claim is that the trial court erred by denying his motion to

continue the trial so that Walker could examine A.W.’s counseling records. The

Commonwealth contends that the trial court did not err by denying the

continuance or by denying Walker’s request to examine the records. We review

the trial court’s decision for an abuse of discretion. Morgan v. Commonwealth,

421 S.W.3d 388, 392 (Ky. 2014) (citation omitted). A trial court abuses its

discretion when its decision is “arbitrary, unreasonable, unfair, or unsupported

by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.

1999).

In his motion to continue his trial, Walker argued that if there was no

mention of Walker within the counseling records, then the absence of any

mention of him would be exculpatory. Walker further argued that if another

perpetrator was mentioned within the records, this would also be exculpatory

evidence. As describe above, the trial court concluded that due to the nature of

the psychotherapist/patient privilege, it would review the records in camera

and only upon finding exculpatory information would information in the

records be released to counsel. After its review, citing Kentucky Rules of

Evidence (KRE) 506 and 507 and Commonwealth v. Barroso, 122 S.W.3d 554

(Ky. 2003), the trial court entered an order stating that no such exculpatory

evidence was contained within the records. The trial court denied Walker’s

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motion for production of the counseling records and motion to continue the

trial.

Kentucky Rule of Criminal Procedure (RCr) 9.04 authorizes a trial court

to grant a continuance upon motion and sufficient cause shown by either

party. As explained in Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky.

1991), 10

[w]hether a continuance is appropriate in a particular case
depends upon the unique facts and circumstances of that case.
Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849, 11
L.Ed.2d 921 (1964). Factors the trial court is to consider in
exercising its discretion are: length of delay; previous
continuances; inconvenience to litigants, witnesses, counsel and
the court; whether the delay is purposeful or is caused by the
accused; availability of other competent counsel; complexity of the
case; and whether denying the continuance will lead to identifiable
prejudice. Wilson v. Mintzes, 761 F.2d 275, 281 (6th Cir. 1985).

“Identifiable prejudice is especially important. Conclusory or speculative

contentions that additional time might prove helpful are insufficient. The

movant, rather, must be able to state with particularity how his or her case will

suffer if the motion to postpone is denied.” Bartley v. Commonwealth, 400

S.W.3d 714, 733 (Ky. 2013) (citation omitted).

On appeal, Walker contends that all of the factors to be considered would

necessarily lead to the conclusion that granting the continuance was

warranted. But particularly, in relation to the trial court reviewing the records

in camera to determine if Walker’s arguments for production of the counseling

records were supported, Walker argues that the trial court should have

10 Overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.

2001).
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continued the trial to ferret out this issue. Walker further complains that it

was impossible for the defense to know if evidence of an alternate perpetrator

was actually contained within the counseling records. Walker asserts that he

was substantially prejudiced by the trial court denying his motion to continue

and denying the defense access to the counseling records. Walker asks this

Court to reverse and remand this matter so there can be specific

determinations made from the counseling records as to whether or not they

contained exculpatory evidence. 11 The Commonwealth counters that Walker

fails to explain with any specificity the prejudice he allegedly suffered when the

trial court followed the procedure prescribed in Barroso and declined his

motion for a continuance.

In Barroso, this Court concluded that “the [Sixth Amendment’s]

Compulsory Process Clause affords a criminal defendant the right to obtain

and present exculpatory evidence, including impeachment evidence, in the

possession of a third party that would otherwise be subject to the

psychotherapist-patient privilege.” 122 S.W.3d at 562. The Court explained

the two-part inquiry to be used to determine whether the otherwise privileged

information may be admitted into evidence. First, “in camera review of a

witness’s psychotherapy records is authorized only upon receipt of evidence

11 Walker asserts that based on the trial court’s other rulings, it was determined

to exclude any evidence relating to an alternate perpetrator and it was impossible for
the defense to know if such evidence and references were actually contained within
the counseling records. As discussed below, we conclude that the trial court did not
abuse its discretion by prohibiting Walker from cross-examining A.W. about being
molested by her grandfather and advancing his alternate perpetrator theory when the
evidence did not support it.

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sufficient to establish a reasonable belief that the records contain exculpatory

evidence.” 12 Id. at 563-64 (citing Stidham v. Clark, 74 S.W.3d 719, 727 (Ky.

2002)). Second, “[i]f the in camera inspection reveals exculpatory evidence, i.e.,

evidence favorable to the accused and material to guilt or punishment,

including impeachment evidence, that evidence must be disclosed to the

defendant if unavailable from less intrusive sources.” Id. at 564 (citations

omitted). Also pertinent to the proper resolution of this case, the Barroso Court

additionally concluded that when a trial court undertakes a review of

psychotherapy records to determine whether the records contain exculpatory

evidence, the defendant’s constitutional right to a fair trial can be fully

protected by an in camera inspection by the trial court alone. Id. However, if

discovery is denied and a conviction occurs, the defendant may request that

the appellate court review the records and determine if the trial court’s ruling

was an abuse of discretion. Id.

Here, the trial court received and completed its in camera review within

three days of Walker filing his motion to continue and three days prior to the

scheduled start of Walker’s trial. While Walker brings two claims of error

related to this process, the lead complaint appears to be that defense counsel

was not able to verify if evidence of an alternate perpetrator was actually

contained within the counseling records. Walker suggests that this Court may

12 In regard to this requirement, here, the trial court implicitly concluded that

the “reasonable belief” requirement was met. The Commonwealth does not dispute
that decision in this appeal.

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reverse the trial court on this issue and remand so there can be, apparently by

the defense, specific determinations made from the counseling records as to

whether or not they contained exculpatory evidence. As explained in Barosso,

here, any relief from the trial court’s conclusion that the counseling records did

not contain exculpatory evidence will stem from this Court’s appellate review of

the records.

Upon review, like the trial court, we conclude the records do not contain

exculpatory information. Consequently, we conclude that the trial court did

not abuse its discretion by not disclosing the counseling records to the defense.

And relatedly, with the counseling records providing no basis to delay the trial

we conclude the trial court did not abuse its discretion by denying Walker’s

motion. While Walker complains that the trial court should have continued the

trial to ferret out whether the counseling records contained exculpatory

information, with timely receipt of the records and timely conclusion that the

records did not contain exculpatory information, the complaint is without

merit. As the Commonwealth points out, with the trial court ruling that the

counseling records were inadmissible, Walker went to trial in exactly the same

position that he was in before he filed his motion for a continuance, and he has

failed to explain how he was prejudiced by the trial court’s decision.

II. The trial court did not abuse its discretion when it did not strike
Juror 565 for cause.

Walker’s second claim is that the trial court erred when it refused to

strike Juror 565, a brother-in-law to a victim’s advocate working at the

Commonwealth Attorney’s office, for cause. The Commonwealth argues that
9
the trial court did not err. The trial court’s decision is reviewed using the

abuse of discretion standard. Adkins v. Commonwealth, 96 S.W.3d 779, 795

(Ky. 2003).

RCr 9.36(1) establishes the standard by which the trial court decides

whether a juror must be excused for cause. It states: “When 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.”

As explained in Sturgeon v. Commonwealth, 521 S.W.3d 189, 194 (Ky. 2017),

the rule does not require a finding by the trial court that the juror has the

actual ability to render a fair and impartial verdict, instead, Rule 9.36(1)

mandates the removal of a juror if there is merely “a reasonable ground to

believe” that he cannot render a fair and impartial verdict.

Walker advocated striking Juror 565 for cause because his familial

relationship with a Commonwealth Attorney victim’s advocate created an

appearance of impropriety. Here, Walker also cites a factual similarity in

Ordway v. Commonwealth, 391 S.W.3d 762 (Ky. 2013), as supporting his

argument that the trial court erred when it did not strike Juror 565 for cause.

In Ordway, the sister of Juror 5091 was the victim’s advocate. Id. at 781.

The victim’s advocate was assigned to aid, assist, and comfort the family

members of the deceased victims in Ordway’s case. See id. at 782. This Court

explained that

“[g]enerally, the victim’s advocate in a criminal case tends to be
viewed as favoring, on the victim’s behalf, retribution against the
defendant, and thus is generally allied with the interests of the

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 prosecutors; the victim’s advocate functions as a liaison between
the victim’s family and the prosecutors. This close association by a
prospective juror’s sister with an important participant in the very
case being tried compels that the juror be stricken for cause.”

Id. at 782.

Walker asserts that the only difference between the fact pattern in

Ordway and his case is the victim’s advocate was the sister, as opposed to a

sister-in-law, of the juror in issue. However, the Commonwealth argues that it

is clear that what was important to the Ordway Court in its determination was

the sister’s involvement in Ordway’s case. In relation to that argument, the

Commonwealth points out that in this case, during the bench conference, the

Commonwealth definitively stated that Juror 565’s sister-in-law had not had

any contact with the victim in this case, and as for Juror 565, he stated that he

did not know if his sister-in-law was involved in the case or not.

Walker cites Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985), to

rebut the Commonwealth’s arguments that Juror 565’s answers to questions in

voir dire lead to the conclusion that he could be fair. In Ward, the trial court

did not excuse, for cause, three jurors who were related to the

Commonwealth’s Attorney: an ex-brother-in-law, a distant cousin and a “sort of

an uncle.” Id. at 407. The Ward Court described the lens for viewing questions

about close relationships, holding that “[I]rrespective of the answers given on

voir dire, the court should presume the likelihood of prejudice on the part of

the prospective juror because the potential juror has such a close relationship,

be it familial, financial or situational, with any of the parties, counsel, victims

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or witnesses.” Id. (quoting Commonwealth v. Stamm, 429 A.2d 4, 7 (Pa. Super.

Ct. 1981)) (alteration original). Accordingly, the Ward Court stated that “[o]nce

that close relationship is established, without regard to protestations of lack of

bias, the court should sustain a challenge for cause and excuse the juror.” Id.

Applying the close relationship principle, the Ward Court viewed the trial

court’s refusal to dismiss the uncle for cause as error, but not the ex-brother-

in-law or the distant cousin. See id.

As Ward exemplifies, not all family relationships are close family

relationships for which the likelihood of prejudice should be presumed. We do

not view Ward as automatically disqualifying Juror 565 based upon his sister-

in-law serving as a victim advocate for the Commonwealth Attorney, either

family or situational wise. “To determine whether a reasonable ground existed

to doubt the challenged juror’s ability to render a fair and impartial verdict, the

trial court ‘must weigh the probability of bias or prejudice based on the entirety

of the juror’s responses and demeanor.’” Sturgeon, 521 S.W.3d at 196 (quoting

Sluss v. Commonwealth, 450 S.W.3d 279, 282 (Ky. 2014)). Juror 565

indicated that he did not believe that his sister-in-law’s employment at the

Commonwealth’s Attorney’s office would affect his judgment. Furthermore,

there was no indication that Juror 565 had any prior knowledge of the case or

no response that he could not be a fair and impartial juror. We conclude that

the trial court did not abuse its discretion by refusing to strike potential Juror

565 for cause.

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III. The trial court did not abuse its discretion by refusing to allow
defense counsel to cross-examine the victim about being molested
by her grandfather.

Walker’s third claim is that the trial court erred by prohibiting the

defense to interrogate A.W. on cross-examination about being molested by her

grandfather. The Commonwealth disagrees with Walker. The trial court’s

ruling with respect to the admission of evidence will not be reversed unless the

trial court abused its discretion. Commonwealth v. King, 950 S.W.2d 807, 809

(Ky. 1997) (citing Simpson v. Commonwealth, 889 S.W.2d 781 (Ky. 1994)).

Based upon a social media post in which A.W.’s sister stated that both

she and A.W. had been molested by their grandfather, defense counsel sought

to cross-examine A.W. about the molestation and present evidence of an

alternate perpetrator. After a hearing on the issue, the trial court disallowed

any questioning regarding the grandfather under KRE 412, the rape-shield law.

During the hearing, A.W. testified that when her grandfather abused her,

his fingers never went inside of her vagina. Instead, he would rub the outside

of her vagina until she was raw. Additionally, other witnesses, A.W.’s sister,

who was present during the abuse, and A.W.’s mother and brother, whom A.W.

had told about the abuse, could not testify that they witnessed the grandfather

penetrating A.W.’s vagina or that A.W. had told them that this had occurred.

The trial court ruled that because there was no evidence that the grandfather

could have been the source of the vaginal penetration, any testimony about the

grandfather was irrelevant and inadmissible.

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 Walker argues on appeal that cross-examination on whether A.W. had

been molested by her grandfather was necessary, as A.W.’s medical doctor was

going to testify that A.W.’s hymen had been penetrated and it was further

anticipated that A.W. would testify that she had never had any sexual relations

with anyone else, leading the jury to conclude that A.W.’s ruptured hymen

must have been caused by Walker when it could have been caused by her

grandfather. Walker argues that such evidence was admissible under KRE

412(b)(1)(A) to prove that someone other than Walker was the source of A.W.’s

injury.

Under KRE 412, evidence offered to prove that any alleged victim

engaged in other sexual behavior is generally inadmissible. KRE 412(a)(1).

However, in a criminal case, evidence of specific instances of sexual behavior

by the alleged victim offered to prove that a person other than the accused was

the source of semen, injury, or other physical evidence may be admissible.

KRE 412(b)(1)(A). While Walker emphasizes that the cross-examination of A.W.

should have been allowed because A.W.’s ruptured hymen could have been

caused by the grandfather, the Commonwealth points out that Walker does not

identify any medical testimony which indicated that being rubbed raw on the

outside of her vagina by her grandfather could have caused an injury to A.W.’s

hymen. Upon review, with no evidence of specific instances of sexual behavior

proving that the grandfather was the source of hymen penetration, we cannot

conclude that the trial court abused its discretion when it ruled that any

testimony about the grandfather was irrelevant and inadmissible. Simply put,

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Walker’s conjecture that A.W.’s hymen injury could have been caused by her

grandfather cannot satisfy the “specific instances” requirement of KRE

412(b)(1)(A).

IV. Even if the trial court erred by allowing the detective to comment
on Walker’s invocation of his Fifth Amendment right, palpable error
relief is not warranted.

Walker’s fourth and unpreserved 13 claim is that the lead detective made

an impermissible comment during the detective’s testimony about Walker’s

decision to assert his Fifth Amendment rights. The Commonwealth counters

that there was no error, but if so, palpable error relief is not warranted.

Under Criminal Rule 10.26, an unpreserved error may only
be corrected on appeal if the error is both “palpable” and “affects
the substantial rights of a party” to such a degree that it can be
determined “manifest injustice resulted from the error.” For error
to be palpable, “it must be easily perceptible, plain, obvious and
readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343,
349 (Ky. 2006). The rule’s requirement of manifest injustice
requires “showing . . . [a] probability of a different result or error so
fundamental as to threaten a defendant’ s entitlement to due
process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.
2006). Or, as stated differently, a palpable error is where “the
defect in the proceeding was shocking or jurisprudentially
intolerable.” Id. at 4. Ultimately, “[m]anifest injustice is found if
the error seriously affected the fairness, integrity, or public
reputation of the proceeding.” Kingrey v. Commonwealth, 396
S.W.3d 824, 831 (Ky. 2013) (quoting McGuire v. Commonwealth,
368 S.W.3d 100, 112 (Ky. 2012)).

Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014).

13 Walker advocates that this claim is preserved for review by his motion for a

new trial. However, without a RCr 9.22 contemporaneous objection during the
detective’s testimony, we do not view the claim as preserved. See Bell v.
Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971); Meece v. Commonwealth, 348
S.W.3d 627, 684 n.33 (Ky. 2011).

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 Here, the detective testified that while he was trying to locate Walker

during his investigation of the charges, the detective received a voice mail

which stated that “Mr. Walker was invoking his rights and would not be

providing a statement to me.” Walker argues that Commonwealth v. Hall, 862

S.W.2d 321, 323 (Ky. 1993), and Green v. Commonwealth, 815 S.W.2d 398,

400 (Ky. 1991), cases addressing post-arrest, pre-Miranda 14-warnings

situations, seem to indicate that the Commonwealth may never introduce

evidence of a defendant’s silence in its case-in-chief, whether such evidence is

introduced intentionally or inadvertently.

Baumia v. Commonwealth, 402 S.W.3d 530, 538 (Ky. 2013), a pre-arrest,

pre-Miranda warning case, discusses the implications of Hall and Green which

Walker sets forth in his argument. Baumia explains that

both the Fifth Amendment and Section 11 [of the Kentucky
Constitution] state that an individual cannot be “compelled” to
incriminate herself.[15] Thus, official compulsion must be present
in order for the privilege against self-incrimination to attach. See
Jenkins [v. Anderson], 447 U.S. [231,] 241 [(1980)], 100 S. Ct. 2124
(Stevens, J., concurring) (“[T]he privilege against compulsory self-
incrimination is simply irrelevant to a citizen’s decision to remain
silent when he is under no official compulsion to speak.”).

402 S.W.3d at 538.

With regard to whether there was official compulsion for Walker to

incriminate himself, it is not disputed by the parties that Walker was not in

custody and that Walker had not been informed of his rights. During his

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

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

any criminal case to be a witness against himself[.]” U.S. Const. amend. V.

16
testimony, the detective testified that he accompanied the social worker to

Walker’s residence to provide security during the initial investigation of the

allegations and that a criminal case was not opened on Walker until shortly

before the detective received the voicemail and while he was still attempting to

locate Walker. Walker does not argue or point to any part of the record to show

that he was Mirandized before he left the voicemail that the detective referred

to.

The circumstances of this case may be viewed as supportive of the

conclusion that because the detective’s testimony was not a comment on

Walker’s silence after he had been arrested and Mirandized, it was not

protected from being commented on by the Commonwealth. But even if the

testimony was in error, we conclude that the detectives brief, isolated comment

does not warrant palpable error relief. See Hunt v. Commonwealth, 304 S.W.3d

15, 37 (Ky. 2009) (“[W]e are not persuaded that the single reference to Hunt’s

invoking his right to remain silent resulted in palpable error.”). Given the

evidence before the jury, it is clear that the jury’s verdict would have been the

same in the absence of the detective’s statement and the error was not so

fundamental as to threaten Walker’s entitlement to due process of law. Martin,

207 S.W.3d at 3.

CONCLUSION

For the foregoing reasons, the Warren Circuit Court’s judgment is

affirmed.

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

17
JJ., concur. Thompson, J., concurs in result only.

COUNSEL FOR APPELLANT:

Matthew James Baker

COUNSEL FOR APPELLEE:

Russell M. Coleman
Attorney General of Kentucky

Jenny Lynn Sanders
Assistant Attorney General

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