RENDERED: AUGUST 24, 2017
TO BE PUBLISHED

a%upreme Court of H§WN AL

2015-sc-000337-MR1D ATE., q `_, K"»“mm, bc,

KYLE SHEA HOLBROOK n APPELLANT

ON APPEAL FROM MORGAN CIRCUIT COURT
V. HONORABLE REBECCA K. PHILLIPS, JUDGE
NO. 15-CR~00008

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE HUGHES

AFFIRMING

Appellant, Kyle Shea Holbrook, appeals as a matter of right from a
judgment of the Morgan Circuit Court sentencing him to twenty years’
imprisonment for murder and tampering with physical evidence. Holbrook
alleges that the trial court erred in five ways: 1) by permitting expert testimony
about historical data analysis of cell phone and cell tower records; 2) by
allowing two witnesses to opine that Holbrook was lying or that he was guilty;
3) by permitting the Commonwealth to introduce photographs depicting the
victim’s body; 4) by authorizing the admission of hearsay statements made by
Holbrook; and 5) by instructing on complicity to murder. Also, Holbrook
contends that he was prejudiced and denied due process of law by the

Commonwealth allegedly defining reasonable doubt during voir dire. For the

following reasons, we affirm the judgment and sentence of the Morgan Circuit
Court.
FACTUAL ANQ PROCEDURALBACKGROUND

In April 2011, Matthew Harris discovered Dillon Bryant’s body floating in
a pond on the two-hundred-acre Holbrook family farm. A month prior, Bryant
had been reported missing by his sister after she was unable to get in contact
with him. When the authorities arrived on the scene, Harris informed them
that after Bryant’s disappearance in late February or early March he observed
tire tracks leading to one pond, backing out, and then heading to the pond in
which the body was found. The pond where the body was recovered was
approximately a mile away from Holbrook’s residence, Despite the advanced
level of decomposition, the body was ultimately identified as that of Bryant.
Medical examination of Bryant’s body revealed that he had been shot twice,
once in the head and the other in the upper back.

Holbrook Was interviewed by police both as part of their investigation
into Bryant’s disappearance and again later as part of the murder
investigation. In his statements to the police, Holbrook claimed that Bryant
had informed him of an altercation that had occurred with Francisco Camacho
and Evan Ratliff a week before he was reported missing. The root of the
altercation was Bryant’s effort to convince his former girlfriend to leave
Camacho’s home where she had been residing. Camacho took exception to
Bryant’s efforts and they had an argument outside his residence. When Bryant

left Camacho’s residence, Camacho followed him. After running the vehicle

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Bryant was in off the road, Camacho confronted and argued with Bryant at a
gas station and later at a home belonging to Greg Creusen.

Holbrook also informed police that the day after this dispute, he picked
up Bryant and they went to his residence to use narcotics. Bryant discussed
his plan to make sham cocaine and rip someone off. Later Bryant was picked
up in a grey or silver sedan, but Holbrook said that he did not know who was
driving the vehicle. Holbrook claimed that this was the last time that he saw
Bryant.

Tvvo years later, in April 2013, Holbrook was indicted by the Elliott
County grand jury for murder and tampering with physical evidence. Prior to
trial the indictment was amended to include complicity liability to the murder
charge. After Holbrook successfully petitioned for a change of venue, the case
Was tried in February 2015, in Morgan County.

Multiple witnesses testified at trial about statements Holbrook allegedly
made to them about his involvement with Bryant’s disappearance Justin
Conn testified that Holbrook told him that Bryant was killed by Camacho and
that the body had been placed in the pond to set him up. Conn also explained
that Holbrook had told him that Camacho had offered him money to bring
Bryant to him, but Holbrook said that he would never do that. Similarly, Odie
Robinson testified that several weeks prior to Bryant’s disappearance, Holbrook
informed him that Camacho had offered him money to bring Bryant to him.

Robinson explained that Holbrook told him that he refused to entertain such a

proposition.1 Later, after Bryant’s disappearance, Robinson noticed that
Holbrook had a great deal of money.

The jury also heard testimony from Brian Stacy. Stacy explained that he
had purchased narcotics from Holbrook in the past. After getting out of jail,
Stacy approached Holbrook to purchase cocaine. Holbrook informed Stacy
that he was unable to procure the drugs. Specifically, he claimed that “he
wasn’t messing with those people anymore” and that someone ended up dead.
Stacy was uncooperative during questioning and denied informing Kentucky
State Police (KSP) Detective Gardner about statements allegedly made by
Holbrook to him. Subsequently, Detective Gardner testified that Stacy
informed him that Bryant owed Camacho $2,600 and when he failed to pay,
Camacho ordered Holbrook to seize Bryant. Afterwards, Holbrook brought
Bryant to where Ratliff and Camacho were, and the pair murdered him.

Additionally, Tony Lewis, who was incarcerated with Holbrook for several
months in 2012-2013, informed the jury that based on his discussions with
Holbrook, Holbrook believed that he had gotten away with murdering Bryant.
According to Lewis, Holbrook had an altercation with Bryant. Also, in a
statement made to KSP Detective Royce Collett, Lewis claimed that Holbrook

murdered Bryant to erase a debt owed to Camacho.

 

1 Robinson also testified about an earlier conversation that he had with
Holbrook, in which Holbrook admitted to receiving money from Camacho, which he
split with Bryant.

Subsequently, Holbrook was found guilty of all charges. The jury
recommended twenty years’ imprisonment for murder and three years’
imprisonment for tampering with physical evidence. The jury recommended
that those sentences be served concurrently for a total sentence of twenty
years’ imprisonment The trial court sentenced Holbrook in conformance with
the jury’s recommendation Holbrook brings this appeal as a matter of right.

ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion by Permitting the
Introduction of Expert Testimony Regarding Historical Data Analysis of
Cell Phone and Cell Tower Records.

Holbrook alleges that the trial court erred by permitting the introduction
of expert testimony from Special Agent Kevin Horan of the Federal Bureau of
Investigation (FBI). Prior to trial, Holbrook sought to bar Special Agent Horan’s
testimony about historical data analysis of cell tower and cell phone records
contending that his conclusions are scientifically unreliable.

The admissibility of expert testimony is governed by Kentucky Rule of
Evidence (KRE) 702. That rule provides:

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a Witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or
data;

. (2) T he testimony is the product of reliable principle
and methods; and

(3) The witness has applied the principles and methods
reliably to the facts of the case.

KRE 702 Was Written in light of guidance set forth by the Supreme Court
in Dauberi,L v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786
(1993). Daubert requires the trial court to play the role of “gatekeeper” to
prevent the admission of “unreliable pseudoscientific evidence.” Miller v.
Eldridge, 146 S.W.3d 909, 914 (Ky. 2004). “[A] trial court’s task in
assessing proffered expert testimony is to determine whether the
testimony ‘both rests on a reliable foundation and is relevant to the task
at hand.’” Futrell v. Commonwealth, 471 S.W.3d 258, 282 (Ky. 2015)
(quoting Dauben‘, 509 U.S. at 597, 113 S. Ct. at 2799). Relevancy, in
this setting has been described as one of “fit”:

‘Fit’ is not always obvious, and scientific validity for

one purpose is not necessarily scientific validity for

other, unrelated purposes. . . . The study of the

phases of the moon, for example, may provide valid

scientific [, technical, or other specialized] ‘knowledge’

about whether a certain night was dark, and if

darkness is a fact in issue, the knowledge will assist

the trier of fact. However, (absent creditable grounds

supporting such a link), evidence that the moon was

full on a certain night will not assist the trier of fact in

determining whether an individual was unusually

likely to have behaved irrationally on that night.
Luna v. Commonwealth, 460 S.W.3d 851, 864 (Ky. 2015) (quoting Goodyear
Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000) (alterations in
original)). “In making its reliability determination, the trial court must consider

Whether the reasoning or methodology underlying the testimony is

scientifically valid and whether that reasoning or methodology properly can be

6

applied to the facts in issue.”’ Toyota Motor Corp. v. Gregory, 136 S.W.3d 35,
39 (Ky. 2004) (quoting Dauben‘, 509 U.S. at 592-93, 113 S. Ct. at 2796). To
evaluate whether the proffered expert testimony is reliable, a trial court may
consider a number of non-exclusive factors such as: “whether the principle,
theory, or method in question ‘can be (and has been) tested,’ whether it ‘has
been subjected to peer review and publication,’ whether it has a ‘known or
potential rate of error,’ and whether it enjoys acceptance within ‘a relevant
scientific community.”’ Futrell, 471 S.W.3d at 282 (quoting Daubert, 509 U.S.
at 593-94, 113 S. Ct. at 2796-97).

“The decisions of trial courts as to the admissibility of expert witness
testimony under Dauben‘ are generally entitled to deference on appeal because
trial courts are in the best position to evaluate firsthand the proposed
evidence.” Miller, 146 S.W.3d at 914. Accordingly, whether a witness qualifies
as an expert is reviewed under an abuse of discretion standard. Id. The test
for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire
& Rubber Co., 11 S.W.3d at 581 (citing Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999)). However, any factual determinations made by the trial
court in evaluating an expert’s reliability are reviewed for clear error. Luna,
460 S.W.3d at 864 (citing Hyman & Armstrong P.S.C. v. Gunderson, 279 S.W.3d
101-02 (Ky. 2008)).

To understand the issues presented in Special Agent Horan’s testimony,

a brief explanation of the intersection of cell phones and cell phone towers is

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necessary. “Cell phones work by communicating with cell-sites operated by
cell-phone service providers. Each cell-site operates at a certain location and
covers a certain range of distance.” In re U.S. for an Order Authorizing the
Release oinstorical Cell-Site Info., 809 F. Supp. 2d 1 13, 115 (E.D.N.Y. 201 1).
The geographic area covered by a particular tower depends upon “the number
of antennas operating on the cell site, the height of the antennas, topography of
the surrounding land, and obstructions (both natural and manmade).” United
States 1). Hill, 818 F.3d 289, 295 (7th Cir. 2016) (quoting Aaron Blank, The
Limitations and Admissibility of Using Historical Cellular Site Data to Track the
Location ofA Cellular Phone, 18 RICH. J.L. 85 TECH. 3, 5 (2011)).

“When a cell phone user makes a call, the phone generally ‘connect[s] to -
the cell site with the strongest signal,’ although ‘adjoining cell [towers] provide
some overlap in coverage.’” Id. “As a cell phone user moves from place to
place, the cell phone_automatically switches to the tower that provides the best
reception.” State 1). Johnson, 797 S.E.2d 557, 562 (W.Va. 2017) (quoting In re
Application of U.S. for an Order for Disclosure of Telecomms. Records &
Authorizing the Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435,
436-37 (S.D.N.Y. 2005)).

Due to practical and technical necessity, “cell-phone service providers
keep historical records of which cell-sites each of their users’ cell phones have
communicated.” 809 F. Supp. 2d at 115. Review of a cell tower’s location data
“does not identify a cell phone user’s location with pinpoint precision-it

identifies the cell tower that routed the user’s call.” United States v. Dauis, 785

8

F.3d 498, 515 (1 lth Cir.), cert. denied, 136 S. Ct. 479 (2015); see also State 1).
Simmons, 143 A.3d 819, 825 (Me. 2016) (“[Historical cell-site data] makes it
possible to identify at least the general location of a cell phone at the time the
phone connects to a tower.” A cell user’s location “may be further defined by
the sector of a given cell tower which relays the cell user’s signal, the user may
be anywhere in that sector.” Dcwis, 785 F.3d at 515.

In the case at bar, the trial court conducted a pretrial hearing to assess
Special Agent Horan’s qualifications and to examine his analysis and opinions
relating to historical cell-site data. During that hearing, the trial court learned
that Special Agent Horan has been employed by the FBI for nineteen years and
is a member of the Bureau’s Cellular Analysis Survey Team (CAST). CAST was
created to analyze various historical records associated with the use of cell
phones including cell phone records, tracking cell phones through cell tower
records, and analyzing cell phones. CAST agents undergo one month of
training, along with continuing education and updates from professionals in
the cell phone industry. Additionally, Special Agent Horan attended a
specialized training known as the Project Pinpoint School where he
concentrated on cellular analysis and tracking. Based on the foregoing, the
trial court concluded that Special Agent Horan was an expert.

Subsequently, Special Agent Horan explained that cell phones are
essentially radios, as they use radio signals to contact cell towers. Each tower
is unique and has identifiers that allow cell providers to determine what

specific tower a phone communicated with during the logged activity. Most cell

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towers are engineered to cover a 360-degree radius which is typically broken
down into three sectors. When a user makes a phone call, the cell phone
connects to the tower and sector with the strongest signal, which is often, but
not always, the closest tower to the caller. Through reviewing cell phone
records, which reflect which tower a phone connects to at a specific date and
time, Special Agent Horan could determine the general location of a phone at a
particular time. By determining the cell phone tower and sector, Special Agent
Horan can identify a general area or “footprint” within which the phone was
located at a given time.

To identify the exact boundaries of the “footprint,” Special Agent Horan
would typically perform a “drive test,” wherein he would drive the area to
identify the exact size of the “footprint.” However, Special Agent Horan did not
perform a drive test in this case due to the passage of time. Special Agent
Horan explained that a drive test conducted in 2013 or 2014 would not yield
accurate information as to the “footprint” of the tower as it existed in 2011, due
to software and hardware changes. Also, he noted that while a drive test is the
best way to refine the coverage area, the general principles of coverage apply
regardless.

After hearing Special Agent Horan’s proffered testimony, the trial court

determined that:

[Special Agent Horan’s] testimony is based upon the
technology and analysis system which is the industry
standard. His methods of analysis have been
repeatedly utilized with success and were developed by
and taught by industry members. His testimony is
reliable, relevant, and of assistance to the trier of fact.

10

Without question, the concerns which drive a Daubert
analysis do not exist herein. This is not ‘junk science’
or ‘junk technology’ for this is the methodology of the
industry itself. More importantly, this is not some
technique devised by [Special] Agent Horan that is
untested and unacknowledged. [Special] Agent Horan
is simply interpreting that which was created by the
industry using the guides the industry gave him to use
in interpretation.

Accordingly, the trial court denied Holbrook’s motion to exclude Special Agent

Horan’s testimony,2

At trial, after establishing his credentials, Special Agent Horan explained
to the jury how cell phones and cell towers generally interact and how this
information is recorded in cell phone records. Specifically, Special Agent Horan
testified that each cell tower has three sectors, that a cell phone when
accessing a cell tower only accesses one sector, and that access is reflected in
that cell phone’s records.

Special Agent Horan then explained to the jury that a review of the phone
records in the case established that on March 1, 2011: 1) Bryant’s cell phone
accessed cell towers’ sectors 43062 and 43074; and 2) Holbrook’s cell phone
accessed the same two cell towers’ sectors as Bryant along with two different
towers. While Special Agent Horan identified that both Bryant and Holbrook

accessed the same cell towers’ sectors, he was unable to identify the exact

boundaries of the cellular “footprint.” Further, Special Agent Horan explained

 

2 The trial court, in its order denying Holbrook’s motion, noted that Holbrook
had retained an expert in the field of cell phone technology, but that witness did not
testify at the hearing No explanation was offered to the trial court as to why the
expert did not testify.

11

he was unable to conclude whether Bryant’s cell phone was stationary within
the “footprint” or moving or that phone’s relation to Holbrook’s cell phone.

Special Agent Horan also testified that an analysis of cell phone records
for Camacho and Ratliff established that: 1) from February 28,'2011, through
March 1, 2011, Camacho’s phone did not touch the same sectors as Holbrook’s
or Bryant’s phones; and 2) Ratliff’s phone was traveling east to west beginning
on February 28, 201 1, with the phone ultimately being located in Texas on
March 1, 2011.

Holbrook contends that the admission of Special Agent Horan’s
testimony was error and claims that “the trial court paid lip service to the
factors that can be considered in Daubert analysis.” Holbrook argues that the
trial “court relied on the fact that the ‘industry’ was involved to serve as a
safeguard Yet that is effectively allowing the industry to police itself.”
However, the trial court rightly noted that the methodology and technology
employed by Special Agent Horan came from the cell phone industry to allay
concerns that the proffered testimony was nothing more than pseudoscientific
evidence.

l Holbrook relies on an unpublished opinion from the United States Court
of Appeals for the Sixth Circuit, United States v. Reynolds, 626 Fed. Appx. 610
(6th Cir. 2015), to state that “the trial court’s reliance on ‘the industry’ in its
order is flawed.” Holbrook does not explicitly state why Reynolds supposedly
casts doubt on the scientific process employed in this case. Rather, Holbrook

simply quotes a significant portion of Reynolds without providing the necessary

12

analysis to demonstrate how Reynolds applies to this case. In Reynolds, the
Sixth Circuit noted federal Courts had disagreed about the “reliability of using
historical cell-site analysis to determine a caller’s location as being in a specific
cell-sector.” Id. at 617. However, Reynolds did not serve to resolve that
disagreement, as historical cell-site analysis was only used to identify a cell
sector where callers were not present. Id.

While Reynolds does not address the issue before this Court, namely the
propriety of historical cell-site analysis to identify where callers were present,
the United States Court of Appeals for the Seventh Circuit did so in United
States v. Hill, 818 F.3d 289 (7th Cir. 2016). First, although it is acceptance
within the field of expertise, not judicial acceptance, that is paramount in
assessing expert testimony, the Hill Court explained that “[d]istrict courts that
have been called upon to decide whether to admit historical cell-site analysis
have almost universally done so.” 818 F.3d at 297 (citing United States v.
Jones, 918 F. Supp. 2d 1, 5 (D.D.Ci 2013) (collecting cases)). Second, the Hill
Court determined that the district court did not abuse its discretion in
permitting the introduction of historical cell-site analysis to prove the location
of a cell phone user charged with robbery of a credit union. The Court noted
that the “science is well understood” and “the technique [of cell phone location
analysis] has been subjected to publication and peer criticism, if not peer
review.” Id. at 298. However, the Hill Court did note that caution was

warranted in the introduction of this material, namely identifying “the level of

13

precision--or imprecision-with Which that particular evidence pinpoints a
person’s location at a given time.” Id. at 299.

We agree with the Hill Court, that the admission of historical cell~site
evidence to establish an individual’s location is a matter to be assessed
carefully. Critically, Special Agent Horan’s testimony expressly identified
limitations in the scientific techniques he employed. Specifically, when asked
about a particular call made by Bryant, Special Agent Horan explained that he
was unable to identify the exact boundaries of the phone’s “footprint” during
the time of that call. Further, Special Agent Horan’s testimony only established
the general locations of the callers, rather than asserting the callers were at a
fixed position. With these caveats established, Special Agent Horan’s testimony
permitted the jury to infer that Holbrook was near Bryant around the time that
he disappeared. This testimony was relevant and probative and as such its

admission was not an abuse of the trial court’s discretion.3

 

3 Holbrook also contends that as the use of historical data has not been
subjected to peer review that it was inappropriate for the trial court to permit the
introduction of this evidence. Contrary to Holbrook’s argument, whether a scientific
theory or method has been subjected to peer review is not dispositive as to whether
that evidence should be adrn_itted. Rather, the trial court takes a broader view to
determine whether the underlying theory or methodology is scientifically valid.
Clearly, Special Agent Horan’s historical cell-site analysis meets this criterion. In
particular as noted by the trial court, the methodology that was created by the cell
phone industry, “has been tested repeatedly through application to actual cases.
Such application has lead (sic) to successful apprehension and prosecutions, which
certainly speaks to the accuracy of the methodology.” See also Hill, 818 F.3d at 297-

99.
14

II. The Trial Court’s Admission of Detective Bowling’s Statement Was
Harmless Error.

Holbrook claims that KSP Detective Bowling improperly characterized
him as a liar.4 The trial court’s admission of Detective Bowling’s testimony is
reviewed for an abuse of discretion. Meskimen v. Commonwealth, 435 S.W.3d
526, 534 (Ky. 2013) (citing Anderson v. Commonwealth, 231 S.W.3d 117, 1 19
(Ky. 2007)).

During Detective Bowling’s direct examination, the prosecutor inquired
about his interview of Holbrook, which occurred the day Bryant’s body was
recovered. Detective Bowling relayed what Holbrook had told him_that there
had been a call on the Holbrook home phone, Holbrook did not recognize the
caller, and handed the phone to Bryant who took the call. Subsequently,
Detective Bowling was asked about his impressions of Holbrook concerning the
phone call. Over Holbrook’s objection, the trial court permitted Detective
Bowling to testify as to Holbrook’s demeanor, any inconsistencies, or
observations. Detective Bowling then said, “I advised him I didn’t think he was

being truthful and I don’t think he was being truthful.”5

 

4 Holbrook contends that the admission of this evidence violated his rights
under the-Fifth and Fourteenth Amendments to the United States Constitution and
Sections 'I`wo, Seven, Eleven, and Fourteen of the Kentucky Constitution.

_ 5 Holbrook objected to the second portion of Detective Bowling’s statement and
requested that it be stricken from the record and that a limiting instruction be given to
the jury. The trial court noted that Detective Bowling was permitted to explain his
interrogation techniques and what he said to Holbrook during his interview, but that it
would be inappropriate for him to comment on Holbrook’s truthfulness The trial
court explained that it was difficult to assess the context of the statement as Detective
Bowling did not say much. Ultimately, the trial court was unsure that Detective
Bowling had commented on Holbrook’s truthfulness and as such overruled the
objection. Also, the trial court reiterated that if Detective Bowling in his subsequent

15

“With few exceptions, it is improper to require a witness to comment on
the credibility of another witness. A witness’s opinion about the truth of the
testimony of another Witness is not permitted.” Moss v. Commonwealth, 949
S.W.2d 579, 583 (Ky. 1997) (quoting State v. James, 557 A.2d 471, 473 (R.I.
1989)). Conclusions about the truth of the testimony of witnesses is ultimately
“within the exclusive province of the jury.” Id. We reiterated these principles,
set forth in Moss, eight years later in Lanham v. Commonwealth, 171 S.W.3d
14, 23 (Ky. 2005), by saying that “it is generally improper for a witness to
characterize the testimony of another witness as ‘lying’ or otherwise.”

However, the Lanham Court went on to create an exemption from this
general rule by upholding the admission of an unredacted audio recording of a
police interrogation, in which the officer accused the defendant of lying. Id. at
28-29. “The full statement, complete with the interrogator’s comments on the
defendant’s veracity and ‘shifting, inconsistent story’ was admissible, we held,
not as an expression of the interrogator’s actual opinion about the defendant’s
credibility, but as a verbal act providing context for the suspect’s responses.”
Walker v. Commonwealth, 349 S.W.3d 307, 311 (Ky. 2011) (quoting Lanham,
171 S.W.3d at 19).

While Lanham concerned a recorded statement, as opposed to live

testimony from a law enforcement officer, Lanham’s general principles are

 

Bowling had commented on Holbrook’s truthfulness and as such overruled the
objection, Also, the trial court reiterated that if Detective Bowling in his subsequent
testimony were to comment on Holbrook’s truthfulness that she would sustain defense
objections to that portion of his testimony,

16

applicable in the case at bar. In his testimony, Detective Bowling explained the
course of his interview with Holbrook, This included his discussion of
interrogation techniques-namely, his telling Holbrook that he did not believe
that he was being truthful. Detective Bowling’s discussion of an interrogation
technique was not admitted to establish that Holbrook was a liar, but rather to
explore his actions during the interrogation. As such there was no error in the
admission of the portion of Detective Bowling’s statement, where he said that “I
advised him I didn’t think he was being truthful . . . .”

However, the remainder of Detective Bowling’s statement, “and, I don’t
think he was being truthful[‘,]” was an impermissible comment on Holbrook’s
truthfulness. This comment did not provide explanation or context for
Detective Bowling’s interview with Holbrook, rather it was simply an opinion on
Holbrook’s credibility, which ran afoul of the principles articulated in Lanham
and Moss. As such, the trial court abused its discretion by permitting the
admission of this portion of Detective Bowling’s statement

While the admission of the statement was error, we conclude that the
error was harmless. “A non-constitutional evidentiary error may be deemed
harmless, the United States Supreme Court has explained, if the reviewing
court can say with fair assurance that the judgment was not substantially
swayed by the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89
(Ky. 2009) (citing Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239

(1946)). The fundamental question is “Whether the error itself had substantial

17

influence [on the result]. If so, or if one is left in grave doubt, the conviction
cannot stand.” Id. (quoting Kotteakos, 328 U.S. at 765).

In finding harmless error, we note that the statement compromised a tiny
portion of Detective Bowling’s testimony. Moreover, the statement must be
viewed in the context of the entirety of Holbrook’s trial, which lasted
approximately two weeks and featured the testimony of approximately forty-one
prosecution and defense witnesses. Additionally, Detective Bowling’s opinion
that Holbrook was not being truthful in his recounting of receiving a phone
call, not knowing who the caller was, and handing the phone to Bryant, was
not of critical importance to the resolution of the case. Detective Bowling’s
opinion which cast doubt on this one small portion of Holbrook’s story, did not
address the ultimate issue in the case, namely the guilt or innocence of
Holbrook, Further, while we do not condone police officers opining as Detective
Bowling did in this case, we understand, as do lay jurors, that criminal charges
are unlikely to be initiated against a defendant if police believe the whole of a
defendant’s explanation regarding the facts and circumstances surrounding
the crime. In light of these considerations, we cannot say that the judgment
was substantially swayed by the erroneous admission of Detective Bowling’s

statement regarding Holbrook’s explanation of the phone call.6

 

6 Holbrook also raises two other errors concerning police testimony in his trial,
During Holbrook’s cross-examination of Detective Bowling, he asked whether Detective
Bowling’s statement about his truthfulness was an interrogation technique. Detective
Bowling answered that he did not think Holbrook was being truthful, based on his
narrative of his last encounter with Bryant. Subsequently, Holbrook’s objection to
Detective Bowling’s response was overruled. Contrary to Holbrook’s argument, the
trial court did not err in permitting Detective Bowling’s response to Holbrook’s

18

III. The Trial Court Did Not Abuse Its Discretion in Admitting Photographs
of Bryant’s Body.

Holbrook also alleges that the trial court erred in permitting the jury to
view photographs of Bryant’s body.7 During the trial, the Commonwealth
introduced eighteen photographs depicting the recovery of Bryant’s body from
the pond. These photographs also demonstrated the condition of Bryant’s body
and how it had been weighed down with concrete blocks and straps to remain
submerged in the pond. Later, the Commonwealth introduced sixteen
photographs of the autopsy of Bryant’s body. Holbrook contends that the
admission of these photographs was erroneous as they “aroused the passions
of the jury.” The trial court’s admission of this evidence is reviewed under an
abuse of discretion standard. Meskimen, 435 S.W.3d at 534.

ln order to evaluate the admissibility of the photographs, the Court must
determine if the probative value of the evidence was substantially outweighed

by its prejudicial effect. Adki_ns v. Commonwealth, 96 S.W.3d 779, 794 (Ky.

 

question. Holbrook’s question to Detective Bowling about his interrogation techniques
was obviously imprudent, in that it allowed Detective Bowling to offer an opinion on
Holbrook’s truthfulness, but his unfavorable response was responsive to Holbrook’s
question and the objection was properly overruled.

Holbrook’s remaining allegation of error concerning the testimony of Detective
Gardner is also meritless. Holbrook contends that Detective Gardner offered improper
opinion testimony about his criminal responsibility. While Detective Gardner did offer
an opinion on Holbrook’s culpability, there was no error as this issue was raised
during cross-examination by Holbrook himself. During cross-examination, Holbrook
asked Detective Gardner, “[a]nd so it’s your belief that it’s Mr. Holbrook who actually
killed Mr. Bryant?”’ By asking this question, the prosecutor was permitted to explore
during redirect examination the basis of Detective Gardner’s belief in Holbrook’s
culpability. As such, the trial court properly denied Holbrook’s objection to this

te stimony.

7 Holbrook contends that the admission of this evidence violated his rights
under the Fourteenth Amendment to the United States Constitution.

19

2003) (citing KRE 403) (“[P]hotographs that are probative of the nature of the
injuries inflicted are not excluded unless they are so inflammatory that their
probative value is substantially outweighed by their prejudicial effect.”); see
also Fields v. Commonwealth, 12 S.W.3d 275, 279 (Ky. 2000) (citing Be'dell v.
Commonwealth, 870 S.W.2d 779 (Ky. 1993)).

Holbrook relies on Hall v. Commonwealth, 468 S.W.3d 814 (Ky. 2015) to
argue that the trial court’s admission of these photographs was erroneous.
However, this Court’s concern in Hall that the trial court act as a gatekeeper in
examining photographic evidence was.clearly on display in the case at bar. As
acknowledged by Holbrook, the trial court conducted a careful examination of
each of the proffered photographs Indeed, the trial court prevented the
Commonwealth from introducing a significant number of photographs
concluding that they were not relevant or were cumulative. In particular, when
the Commonwealth sought to admit approximately fifty-five photographs of
Bryant’s autopsy, the trial court instructed the prosecutor to review the
photographs to identify those photos that were relevant and to avoid
unnecessary duplication. Ultimately, only sixteen autopsy photographs would
be admitted at trial. Additionally, unlike in Hall, there was no crime scene
video introduced into evidence - the proffered photos were the only way to
demonstrate to the jury how Bryant’s body was found, weighed down to
prevent its discovery, and how it was recovered by the authorities.

Clearly the photographs of Bryant’s body had substantial probative

value. In particular the photographs established the location of the crime,

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Holbrook’s attempt to conceal Bryant’s body, and the injuries to Bryant that
resulted in his death. We acknowledge that the photographs likely caused
some prejudice due to the graphic nature of Bryant’s death. However, we have
explained that as a general rule “a photograph, otherwise admissible, does not
become inadmissible simply because it is gruesome and the crime is heinous.”
Funk 1). Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992) (citing Gall v.
Commonwealth, 607 S.W.2d 97 (Ky. 1980)). Accordingly, the trial court did not
abuse its discretion in determining that the photographs’ probative value
substantially outweighed their prejudicial effect.

IV. Holbrook’s Incriminating Pretrial Statements Were Properly Admitted
Holbrook also contends that three incriminating statements that he
made to Conn, Robinson, and Stacy were improperly admitted.8 We review this

claim under an abuse of discretion standard. Meskimen, 435 S.W.3d at 534.
At trial, the jury learned that Holbrook had made statements to each of
the men, concerning Camacho’s efforts to demand or cajole Holbrook into
bringing Bryant to him. Specifically, Conn testified that Holbrook had told him
that Camacho had offered him money to bring Bryant to him, but Holbrook
said that he would never do that. Similarly, Robinson testified that Holbrook

informed him several weeks prior to Bryant’s disappearance, that Camacho

 

8 Holbrook contends that the admission of this evidence violated his rights
under the Sixth and Fourteenth Amendments to the United States Constitution and
Sections Two and Eleven of the Kentucky Constitution.

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had offered him money to bring Bryant to him. Robinson explained that
Holbrook told him that he refused the proposition.

Additionally, Stacy testified that after Bryant’s disappearance he
unsuccessfully approached Holbrook to purchase cocaine. In the ensuing
discussion Holbrook explained that “he wasn’t messing with those people
anymore” and that someone ended up dead. Stacy was uncooperative during
subsequent questioning and denied informing Detective Gardner about
statements allegedly made by Holbrook to him. As such, Detective Gardner
was called to testify and explained that Stacy had informed him earlier that
Bryant owed Camacho $2,600 and when he failed to pay, Camacho ordered
Holbrook to seize Bryant. Afterwards, Holbrook brought Bryant to Where Ratliff
and Camacho were, and the pair murdered him.

In reviewing the challenged statements, we differentiate between those
statements where Holbrook made a declaration as opposed to Holbrook’s
reiteration of Camacho’s statement to these three witnesses. In the case of the
former, Holbrook’s statements would be admissible as admissions of a party
under KRE 801A(b)(1). The latter statements, the testimony of Conn,
Robinson, and Stacy (Detective Gardner) regarding statements alleged to have
been made by Camacho to Holbrook, were double hearsay.

While double hearsay, this testimony was nevertheless admissible as
“each part of the combined statements conforms with an exception to the
hearsay rule.” KRE 805. The trial court permitted the introduction of the

double hearsay statements, as they concerned an admission of a party,

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Holbrook, under KRE 801A(b)(1) and the statements within concerned the
declarant Camacho’s state of mind under KRE 803(3). KRE 803(3) provides in
relevant part:

Then existing mental, emotional, or physical condition.

A statement of the declarant’s then existing state of mind, emotion,

sensation, or physical condition (such as intent, plan, motive,

design, mental feeling, pain, and bodily health), but not including a

statement of memory . . . unless it relates to the execution,

revocation, identification, or terms of declarant’s will.

Holbrook contends that KRE 803(3) is inapplicable as the
statements concerned Camacho’s state of mind, his interest in harming
Bryant, rather than the state of mind of declarant Holbrook. This
argument misapprehends the relevant declarant to whom the KRE 803(3)
exception applied. Holbrook’s statements to Conn, Robinson, and Stacy
concerned discussions he had with Camacho regarding the need to
transport Bryant to Camacho. Camacho’s statements can be interpreted
as establishing a plan or motive between Holbrook and Camacho for the
murder of Bryant. These statements exposed declarant Camacho’s plan
or future intentions towards Bryant, while also implicating Holbrook in
Bryant’s murder. They were admissible under KRE 803(3) as Camacho’s
state of mind and plan were relevant to an issue before the jury, i.e., an
understanding of why Holbrook would kill his “best friend” Bryant. See
Ernst v. Commonwealth, 160 S.W.3d 744, 753 (Ky. 2005) (citing Blair v.
Commonwealth, 144 S.W.3d 801, 805 (Ky. 2004); Bray 1). Commonwealth,
68 S.W.3d 375, 381-82 (Ky. 2002)). Accordingly, the trial court did not

abuse its discretion in permitting the introduction of this evidence.
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V. The Trial Court Properly Instructed the Jury

Holbrook contends that the trial court erred by instructing the jury on
complicity and that as such his right to a unanimous verdict was violated. We
disagree.

lt is well established that the trial court is required to instruct the jury
on the “whole law of the case, and this rule requires instructions applicable to
every state of the case deducible or supported to any extent by the testimony.”
Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky
Rule of Criminal Procedure (RCr) 9.54(1); Kelly v. Commonwealth, 267 S.W.2d
536, 539 (Ky. 1954)). “We review a trial court’s rulings regarding instructions
for an abuse of discretion.” Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky.
2006) (citing Johnson v. Commonwealth, 134 S.W.3d 563, 569-70 (Ky. 2004)).9

In the case at bar, there was evidence that Holbrook might not have been
solely responsible for Bryant’s death and that he might have been working in
concert with others. In particular, Detective Gardner testified about a
statement made to him by Stacy, which concerned a conversation between
Stacy and Holbrook, It was alleged during that conversation, that Holbrook
admitted to transporting Bryant to Ratliff and Camacho who then murdered

him. Also, there was testimony from Detective Collett about Tony Lewis’s claim

 

9 As Holbrook’s complaint concerns the trial court’s decision to instruct the jury
on complicity, rather than the wording of the proffered instruction, abuse of discretion
is the appropriate standard of review. See Sargent v. Shajffer, 467 S.W.3d 198, 204
(Ky. 2015) (“[A] trial court’s decision on whether to instruct on a specific claim will be
reviewed for abuse of discretion; the substantive content of the jury instructions will
be reviewed de novo.”).

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that Holbrook murdered Bryant to erase a debt owed to Camacho. Based on
these facts, there was sufficient evidence for the trial court to instruct the jury

as to complicity under Kentucky Revised Statutes (KRS) 502.020.10 There was

1'10 CI`I`OI`.

VI. The Commonwealth Did Not Improperly Define Reasonable Doubt
During Voir Dire.

In his final allegation of error, Holbrook contends that his conviction
should be reversed due to the prosecutor’s allegedly impermissible remarks
concerning the reasonable doubt standard during voir dire. The relevant
portion of voir dire, including bench conferences, is as follows:

Prosecutor: You’ve heard this word, phrase, used
sometimes, beyond a reasonable doubt. And we’ll talk a
little bit about beyond a reasonable doubt. I’m getting close
here. But this is an important concept for me to talk about.
ls there anybody here that believes Mr. Holbrook is guilty
right here right now? Nobody? Ok, that’s good. Because
our system requires myself, the Commonwealth, to prove
that he’s guilty beyond a reasonable doubt of the crime that
he’s charged with. Now as l mentioned before he is charged
with murder, tampering with physical evidence. But there’s
that presumption of innocence. Now, the term beyond a
reasonable doubt, let me ask [potential juror #1], what do
you think beyond a reasonable doubt means?

Potential juror #1: lt means what would be reasonable with
the evidence.

 

10 Holbrook contends that the case at bar is “on all fours” with Wolbrecht v.
Commonwealth, 955 S.W.2d 533 (Ky. 1997). However, a cursory review of Wolbrecht
demonstrates that is inaccurate. Reversal was warranted in Wolbrecht not because of
a complicity instruction concerning an unknown principal, but rather due to the
amendment of the indictment late in trial to address complicity liability. Id. at 536-37.
That change midway through the proceedings “placed the defense in the position of
beginning its case totally unprepared on the issue raised by the amended indictment.”
Id. at 537. ln the case at bar, the Commonwealth’s motion to amend the indictment
was granted on May 12, 2014, nine months in advance of trial and therefore did not
implicate the concerns raised in Wolbrecht

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Holbrook counsel: Approach, your honor.

Trial court: Yes.
Bench Conference

Trial court: Your objection is because he is attempting to
define beyond reasonable doubt? Yeah, I’m not going to
allow that question. You’re not allowed, well.

Prosecutor: l asked her for her opinion.

Trial court: You’re asking her what do you believe beyond a
reasonable doubt is and I think to some extent you are
hinting at a definition of it.

Prosecutor: I can’t tell her right or Wrong.

'l`rial court: You can’t tell her but I don’t Want you touching
on it. Rephrase your question, if you want to ask it in a
different way. By asking if you believe beyond a reasonable
doubt is, I think that is, that is too close to the line. I’m
going to sustain the objection.

Open Court

Prosecutor: Let me go back to [potential juror #1], beyond a
reasonable doubt, it doesn’t say beyond all doubt. Do you
agree with that? Does everybody agree with that? So it’s
beyond a reasonable doubt, not beyond all doubt. So that’s
the standard you'll get at the end of the case. That you’ll get
on the instructions, For some of you that’s on prior juries,
you know what I’m talking about. You get instructions, or
definitions, for the charges, and you have to go through
them and that’s the standard of proof that we have to prove,
beyond a reasonable doubt. So, can everybody hold me to
the standard of beyond a reasonable doubt and not
something higher than that? Anybody feel any differently
than that?

Potential juror #2: I can’t hardly hear you. You need to
speak up just a little bit higher.

Prosecutor: I’m sorry. The question was can you hold me to
the standard of beyond a reasonable doubt and not
something higher than that?

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Potential juror #2: That’s a good question. I don’t know.

Prosecutor: You don’t know. Ok, so did you hear the
previous question about, I asked [potential juror #1] that it
didn’t say beyond all doubt, Is that something you think you
would need for us to prove?

Holbrook counsel: Approach, your honor.
Trial court2 Yes.
Bench Conference

Holbrook counsel: I think that’s going behind the [trial]
court’s ruling though. You laid it out clearly what’s not to be
done and I think they’re trying to keep going there.

Trial court: You asked the question and they’ve agreed
they’re not going to hold you to a higher standard than what
the standard is. '

Prosecutor: [Potential juror #2] didn’t.

Trial court: Let me finish. You asked the question and they
all agreed with that. [Potential juror #2] then interrupted
you and said he couldn’t hear you and you needed to speak
up then you reiterated to him. I’m going to let you discuss
with him what the standard is. I mean, I may need to ask
him the question just to be clear, because he’s liable to go off
on some other issue.

Prosecutor: Do you want to bring him up?

Trial court: Well I don’t think that’s necessary. There’s a
standard and they’re all going to have to follow the standard
and if they think they get to go above that then they’re not
appropriate for the jury. So let me just ask him that.

Open court

Trial court: [Potential juror #2], this is to you because you
had a response. You understand that at the end of the trial
there will be some instructions from the [trial] court which
will be the law of the case. You’ll be required to follow those
instructions. In those instructions the standard will be that

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the Commonwealth must meet their burden of proof which is

beyond a reasonable doubt, Do you believe that you will be

able to follow the instructions and do what the instructions

require of you?

Potential juror #2: Yes.

We note at the onset that “[t]rial courts are granted broad discretion and
wide latitude in their control of the voir dire examination under RCr 9.38.”
Rogers v. Commonwealth, 315 S.W.3d 303, 306 (Ky. 2010). However, that
discretion is not unfettered. This Court has repeatedly held that the term
“reasonable doubt” is not to be defined. See Smith v. Commonwealth, 410
S.W.3d 160, 169 (Ky. 2013); Commonwealth 1). Callahan, 675 S.W.2d 391, 393
(Ky. 1984); see also RCr 9.56 (stating that the jury is not to be instructed as to
the definition of “reasonable doubt.”). However, we have held, subject to
appropriate limits, that this rule is not violated by stating what reasonable
doubt is not. See Johnson v. Commonwealth, 184 S.W.3d 544, 549-550 (Ky.
2005) (prosecutor’s remark during voir dire that “beyond shadow of doubt” was
not the same as “beyond reasonable doubt” was not impermissible attempt to
define reasonable doubt).

ln the case at bar, the Commonwealth did not improperly define
reasonable doubt, The trial court properly barred the Commonwealth from
inquiring of a juror to provide a definition for reasonable doubt. Subsequently,

the Commonwealth’s questions were to establish that the jury was obligated to

hold the prosecutor to the burden of proving the case “beyond a reasonable

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doubt,” rather than a higher standard. This was permissible as it did not offer
a definition of What constitutes “reasonable doubt.” As we explained in Rogers:

trial judges or trial counsel on both sides of a criminal
case occasionally have reasonable concerns that
prospective jurors may be confused or misinformed by
the various standards of proof to which they have been
exposed by prior jury service, news reports, television
shows, or elsewhere, resulting in the inability or
unwillingness of jurors to apply the reasonable doubt
standard. The history of our cases on the subject
plainly demonstrates such concern from the
prosecutor’s perspective, and we have consistently
held their efforts to point out that reasonable doubt is
not ‘all doubt’ or a ‘shadow of a doubt’ were either
proper or were, at most, harmless error.

315 S.W.3d at 308. Accordingly, we conclude that the prosecutor’s statements

in voir dire did not improperly define reasonable doubt.
CONCLUSICN

For the foregoing reasons, we affirm the conviction and sentence of the

Morgan Circuit Court.

All sitting. All concur.

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COUNSEL FOR APPELLANT:

Emily Holt Rhorer
Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Thomas Allen Van De Rostyne
Assistant Attorney General
Office of the Attorney General

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