                                               RENDERED: DECEMBER 17, 2015
                                                          TO BE PUBLISHED

               oi5uprrittr Court of el.firtyfr
                               2014-SC-000267-MR


PATRICK DEON RAGLAND                                                   APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.               HONORABLE ERNESTO SCORSONE, JUDGE
                            NO. 11-CR-01338


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


                OPINION OF THE COURT BY JUSTICE NOBLE

                         REVERSING AND REMANDING

      The Appellant, Patrick Deon Ragland, was convicted of second-degree

manslaughter for the beating death of Kerry Mitchell. He was also convicted of

tampering with physical evidence and of being a first-degree persistent felony

offender. He was sentenced to twenty years' imprisonment and now appeals as

a matter of right, raising numerous claims of error, including that the trial

court erred by adding a "no duty to retreat" jury instruction to a general self-

protection instruction and by inadequately instructing the jury on the

justifiable use of force to protect against unwanted sexual intercourse

compelled by force or threat. Because the Court concludes that such

instructional errors were prejudicial, Ragland's convictions are reversed, and

this case is remanded for a new trial.
                                     I. Background

       On December 28, 2010, Kerry Mitchell was found dead in a closet in his

unlocked apartment. His body was bruised and bloody, and decomposing. A

strap from a gym bag was wrapped around his neck, and a bloody footprint

was visible on the back of his shirt. The medical examiner attributed Mitchell's

death to two causes: loss of blood and lack of sufficient oxygen to vital organs

caused by compression to the neck. The medical examiner testified that, given

the state of decomposition, it had not been possible to reliably judge the

amount of blood loss to definitively settle on one or the other cause. Toxicology

results showed evidence of alcohol, methamphetamine, methadone, cocaine,

and oxycodone in Mitchell's system. Under his fingernails, investigators found

DNA from Patrick Ragland, who ultimately admitted to beating Mitchell six

days before his body was found.

      Ragland was homeless in 2010. From time to time he visited the Hope

Center in Lexington, from which he received food and overnight shelter when

needed. It was through the Hope Center that Ragland met Mitchell, who was

attending court-ordered substance-abuse classes at the center. They developed

a friendship centered primarily around drug use. Mitchell was openly

homosexual. Ragland denied having any sexual relationship or engaging in any

sort of sexual acts with Mitchell.

      When Ragland first spoke with police on December 29, he denied any

involvement in Mitchell's death and told police that he had last seen Mitchell

on December 21. Police could see that he had no notable injuries (Ragland later

confirmed that his only injury had been to his foot). He finally admitted to
                                          2
 beating Mitchell, and claimed self-protection, in September 2011 when the

 police confronted him with DNA evidence implicating him.

       According to Ragland, on December 22, he went to Mitchell's apartment

at around 4:00 p.m. to get some sleep after having been up the previous three

nights getting high with Mitchell. When Ragland arrived, Mitchell reportedly

propositioned Ragland for sex in exchange for allowing him to nap at his

apartment. Ragland testified that he thought Mitchell was joking, explaining

that he had frequently joked like that.

       When Ragland laid down on the floor in Mitchell's living room, Mitchell

reportedly laid down next to him. Ragland testified that Mitchell told him to

leave when he told Mitchell to stop. Ragland asked to stay, saying that it was

cold outside and that he had nowhere else to go, to which Mitchell reportedly

responded, "If you ain't going to give me some, you can get the fuCk out of

here." Then, Mitchell apparently told Ragland that he was just playing with

him.

       Ragland claimed that he had dozed off for about thirty minutes when he

woke to find his penis in Mitchell's hand as he apparently tried to give Ragland

oral sex. Ragland pushed Mitchell off of him and punched him in the face. He

also managed to grab a skillet, and he hit Mitchell with it. (At trial, he claimed

that Mitchell hit him with the skillet first before he wrestled it away from him.)

According to Ragland, although he knocked Mitchell to the floor with the skillet

and caused him to bleed, Mitchell would not be subdued and kept coming at

him.



                                          3
       Eventually, Ragland tried to get to Mitchell's bedroom to retrieve his gym

bag containing everything he owned, which was apparently in Mitchell's closet.

But Mitchell reportedly grabbed his legs, so Ragland had to "forcefully drag"

him to try to get to the bedroom closet. Ragland testified that Mitchell let go of

his legs once he got to the bedroom, but then came at him again in the closet,

and the fight resumed. While Ragland recalled hitting Mitchell in the closet

with the skillet "at least two more times," blood-spatter evidence revealed six

distinct impacts had occurred in the closet. Ragland did not recall strangling

Mitchell with the strap from his gym bag that police later found wrapped

around his neck.

      According to Ragland, Mitchell was alive and asking for help when he left

the apartment. Ragland testified that he did not think Mitchell would die. He

admitted to taking Mitchell's cell phone when he left, claiming that he did so

because he was scared Mitchell would call the police on him for their fight. He

also disposed of his bloody clothing after leaving the apartment. He testified at

trial that he did so because he knew Mitchell was HIV positive and was scared

of contracting the disease. He claimed he did not initially tell police what had

happened because he was scared they would not believe him and was

embarrassed about being sexually assaulted.

      Ragland was charged with murdering Mitchell, and he claimed self-

defense. The jury convicted him of second-degree manslaughter, as well as

tampering with evidence and of being a first-degree persistent felony offender.

The jury recommended concurrent sentences of ten years and five years for the

manslaughter and tampering convictions, each enhanced to twenty years for
                                        4
the PFO conviction. The trial court sentenced Ragland to a total of twenty years

in prison in accordance with the jury's recommendations.

       He now appeals as a matter of right. See Ky. Const. § 110(2)(b).

Additional facts will be developed as needed in the discussion below.

                                    II. Analysis

   A. The trial court's self-protection and no-duty-to-retreat jury
      instructions were reversible error.

       Ragland first claims that the trial court improperly instructed the jury on

self-protection. To analyze his claim, it is instructive to begin by comparing the

instruction Ragland requested with that given by the trial court.

      Ragland asked the trial court to instruct the jury as follows:

                              INSTRUCTION NO. 3
                             PROTECTION OF SELF

             If at the time the Defendant, Patrick Ragland, used physical
      force upon Kerry Mitchell, he believed that such force was
      necessary to protect himself against death, serious physical injury,
      kidnapping, sexual intercourse compelled by force or threat, or a
      felony involving the use of force, then he was privileged to use such
      physical force against Kerry Mitchell as he believed to be necessary
      in order to protect himself, including the right to use deadly
      physical force.

      The trial court declined to give Ragland's requested instruction, instead

choosing to mostly (but not perfectly) parrot the form instruction for self-

protection provided by Justice Cooper and Mr. Cetrulo. See 1 William S.

Cooper & Donald P. Cetrulo, Kentucky Instructions to Juries (Criminal) § 11.07

(Rev. 5th ed. 2007). Accordingly, the judge gave the following two-part jury

instruction:




                                         5
                               INSTRUCTION NO. 3
                              PROTECTION OF SELF

              A. If at the time an individual, including the Defendant, uses
       physical force upon another person he believes that person was
       then and there about to use physical force upon him, he is
       privileged to use such physical force against that person as he
       believes to be necessary in order to protect himself against it,
       including the right to use deadly physical force but only if he
       believes deadly physical force to be necessary to protect himself
       from death or serious physical injury.

              B. A person who is not engaged in an unlawful activity and
       who is attacked in a place where he has a right to be has no duty
       to retreat and has the right to stand his ground and meet force
       with force, including deadly force if he or she reasonably believes it
       is necessary to do to prevent death or great bodily harm to himself
       or to prevent sexual intercourse compelled by force or threat.

       Ragland raises several complaints about the instruction given, but at its

core, his claim is that the trial court denied him his right to put on a defense

because its instruction mixed language from KRS 503.055 (the "stand your

ground" statute) and KRS 503.050 (the general self-protection statute).

       His primary complaint with the instruction seems to be two-fold. First,

he complains that Part A (the general self-protection language) did not include

language from the statute providing that he was privileged to use force "to

prevent sexual intercourse compelled by threat or force," KRS 503.050(2); and

as a result, according to Ragland, the judge improperly required the jury to find

that he must have been faced with violent, physical force that was likely to

cause death or serious physical injury, rather than other forces or threats

permitted under the statute. Second, he complains about the court "adding"

four qualifying conditions in Part B (the no-duty-to-retreat language), which are

not required to find a justifiable use of force in self-defense under

KRS 503.050. Specifically, he takes issue with including "additional
                                         6
qualifications" copied straight from the no-duty-to-retreat provision in

KRE 503.055(3) 1 because they introduced several factors and conditions that

did not apply under the facts of this case and, instead, served only to confuse

the jury and prevent them from properly considering his defense. And bringing

together the two aspects of his claim, he contends that the jury's inability to

fairly consider his defense as a result of the alleged muddling of these

instructions was further compounded by the trial court's inclusion of the

protection-from-compelled-sexual-intercourse language only with Part B's

convoluted and inapplicable no-duty-to-retreat language and not with Part A's

general self-protection language.

       The Commonwealth counters by arguing that the trial court's instruction

cannot have been erroneous because its no-duty-to-retreat language in Part B

was almost identical to the language this Court expressly approved in

Commonwealth v. Hasch, 421 S.W.3d 349, 355, 363-64 (Ky. 2013). 2

       The problem with both the trial court's and the Commonwealth's

mechanical approach to giving the no-duty-to-retreat instruction here is that it




       1   KRS 503.055(3) provides:
       A person who is not engaged in an unlawful activity and who is attacked
       in any other place where he or she has a right to be has no duty to
       retreat and has the right to stand his or her ground and meet force with
       force, including deadly force, if he or she reasonably believes it is
       necessary to do so to prevent death or great bodily harm to himself or
       herself or another or to prevent the commission of a felony involving the
       use of force.
       2 The Commonwealth did not otherwise address the specific grounds raised by
Ragland in attacking the no-duty-to-retreat instruction given. Nor did the
Commonwealth specifically address Ragland's related argument that the trial court
also erred in failing to include the "to protect against sexual intercourse compelled by
threat or force" language in Part A.
                                            7
ignores that, as Ragland correctly points out, KRS 503.055(3) and its various

qualifications were not implicated by the circumstances underlying the self-

defense claim raised in this case. None of the circumstances surrounding the

incident at Mitchell's apartment suggested that Ragland had an available route

for retreat, or other opportunity to altogether avoid the confrontation and his

violent response, that could have otherwise created "a risk that the jury would]

be misdirected to give it improper consideration." Id. at 363. As this Court

explained in Hasch, it is only in such situations "where evidence of an apparent

means of retreat is so intertwined in the evidence in the case" that the trial

court should give an appropriate no-duty-to-retreat instruction based on

KRS 503.055(3). Id. This is because so doing prevents the jury from improperly

considering the available means of retreat, or the defendant's knowledge of the

available means, as evidence that the use of force was not reasonably

necessary or that the defendant did not subjectively believe that the use force

was necessary. Id. But when there is no such risk,'because the jury is not

presented with any such evidence to improperly consider, there is no need to

give the instruction.

       Thus, the trial court and Commonwealth are mistaken in their apparent

shared belief that, since Hasch, such instructions are required to be given in all

self-defense cases. Indeed, the Court in Hasch held only that trial courts must

give a no-duty-to-retreat jury instruction "when presented with circumstances

in which the provisions of [KRS 503.055(3) and KRS 503.050(4) 3 ] are



        3 KRS 503.050(4) provides that "[a] person does not have a duty to retreat prior
to the use of deadly physical force."
                                            8
applicable, and upon the request of one of the parties." Id. at 364 (emphasis

added). Since the no-duty-to-retreat provisions did not apply to the

circumstances in this case and were not material to Ragland's defense, it is

clear that the trial court included the Part B no-duty-to-retreat language

unnecessarily. 4 It was error to over-instruct the jury as such. And because

Ragland had a "right to have every issue of fact raised by the evidence and

material to his defense submitted to the jury on proper instructions," Taylor v.

Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999), it was also error to fail to

include in the general self-protection instruction the requested language from

KRS 503.050(2) permitting the use of force "to protect against sexual

intercourse compelled by threat or force."

        However, whether these errors require reversal is a different question.

And the case law presents somewhat conflicting standards for analyzing the

harmlessness of such errors. On the one hand, this Court long held that

instructional errors such as these will require reversal only if the instructions

given are thus "susceptible of a misleading and prejudicial interpretation by the

jury, and thereby conducive to an unjust verdict." Maddox v. Commonwealth,

349 S.W.2d 686, 692 (Ky. 1960); see also Abbott v. Commonwealth, 205 S.W.2d

348, 350 (Ky. 1947) ("While it may be admitted that the giving of these

unnecessary, surplus instructions ... was in the nature of error, yet it must be




      4 We also note in passing that it appears that the no-duty-to-retreat language
was given not upon the request of either of the parties, but instead upon the court's
own insistence that it be included.
                                           9
remembered that where it appears that an error such as this did not mislead

the jury nor produce an unjust verdict, the judgment will not be reversed.").

       On the other hand, while it does not appear that the standard

propounded in these and similar cases was ever expressly abrogated, this

Court has more recently adopted a "more rigorous ... approach to harmless

error in jury instructions." Harp v. Commonwealth, 266 S.W.3d 813, 818 n.6

(Ky. 2008). Under this approach, "[e]rroneous instructions are 'presumed to be

prejudicial' and the Commonwealth 'bears the burden of showing affirmatively

that no prejudice resulted from the error."' Wright v. Commonwealth, 391

S.W.3d 743, 749 (Ky. 2012), as modified on denial of reh'g (Feb. 21, 2013)

(quoting Harp, 266 S.W.3d at 818). The Commonwealth may rebut this

presumption by demonstrating that the instructional error had no effect on the

verdict or judgment. Id.

      Apparently taking for granted the correctness of its overly mechanistic

reading of Hasch as discussed above (while wholly declining to address the trial

judge's failure to instruct on protection against compelled sexual intercourse in

the general self-protection instruction), the Commonwealth failed to advance

any harmlessness argument regarding the instructional errors here. Under this

Court's current approach to harmless-instructional-error analysis, the

Commonwealth's failure to make the requisite affirmative showing to overcome

the presumption of prejudice resulting from the errors in the jury instructions

would seem to be the end of our inquiry.

      But that notwithstanding, even if we applied the older standards, this

Court is still convinced that the erroneous instruction requires reversal. By
                                        10
including the superfluous no-duty-to-retreat language, where the evidence did '

not support doing so, the court unnecessarily convoluted the jury's

consideration of Ragland's self-defense claim, adding additional facts and

conditions that the jury reasonably would have perceived as necessary to find

before it could accept his self-protection defense. That needless convolution of

the instruction, plus the failure to instruct the jury in the general self-

protection portion of the instruction that Ragland was privileged to use force to

protect himself against sexual intercourse compelled by force or threat, were

unavoidably susceptible to misleading or prejudicial interpretation by the jury

and thus conducive to an unjust verdict.

      In sum, the erroneous jury instruction created a significant risk of

misleading the jury and preventing it from fairly considering every issue of fact

and law raised by the evidence. Because the instructional errors were not

harmless, this Court must reverse Ragland's conviction and sentence. Because

we are reversing on this ground, we will address Ragland's other claims of error

only to the extent they are likely to recur on retrial or would bar his retrial.

   B. Ragland was not entitled to immunity from prosecution under
      KRS 503.085.

      Ragland claims that he was entitled to immunity from prosecution under

KRS 503.085 and that the trial court erred in overruling his motions to dismiss

brought under that statute.

      Before trial, the judge held a hearing on Ragland's motion to dismiss

under KRS 503.085, at which the lead detective in the case, Sergeant David

Richardson, testified about his investigation, and crime scene photographs


                                         11
were entered into the record. After the hearing, the trial court overruled

Ragland's immunity claim, finding that the Commonwealth had sufficiently

established probable cause that Ragland's use of force was unlawful. Ragland

then filed a petition for a writ with the Court of Appeals seeking relief from the

trial court's rejection of his immunity claim, and simultaneously asked the

circuit court to stay his trial while he pursued the writ action. The trial court

denied Ragland's motion to stay his trial, and the Court of Appeals denied his

writ petition shortly thereafter, holding that he had an adequate remedy by

appeal. He did not appeal the Court of Appeals' denial of his request for a writ

to this Court, and that decision is not at issue in this direct appeal. The trial

court also denied Ragland's renewed motion for immunity at trial.

      When a claim of immunity is raised under KRS 503.085, the prosecution

may nonetheless proceed if the trial court believes "there is probable cause to

conclude that the force used was not legally justified" under the controlling

provisions of KRS Chapter 503. Rodgers v. Commonwealth, 285 S.W.3d 740,

754 (Ky. 2009). When the defendant "has been tried and convicted by a

properly instructed jury in a trial with no reversible error," this Court has held

that questions raising the propriety of the trial court's immunity determination

become "purely academic." Id. Under such circumstances, the defendant's

"self-defense claim has been thoroughly examined by both the trial judge under

the directed-verdict standard and the jury under the court's instructions and

his entitlement to self-defense has been rejected." Id. In such cases, when a

jury has already convicted the defendant—and, thus, found that his use of

physical force in fact was unlawful beyond a reasonable doubt—and that
                                         12
 conviction has not been shown to be flawed, the appellate court will not revisit

 whether there was probable cause to believe that a defendant's use of force was

 unlawful to allow prosecution under KRS 503.085. 5 But because Ragland has

indeed shown his conviction to be flawed due to the instructional errors

discussed above, it is necessary to address the merits of his immunity claim,

which would preclude the prosecution from going forward on remand were this

Court to find error in the trial court's denial of immunity.

       The standard of review of a denial of a defendant's motion to dismiss for

immunity from prosecution under KRS 503.085 is whether the trial court had

a "substantial basis" for finding probable cause to conclude that the

defendant's use of force was unlawful. Commonwealth v. Lemons, 437 S.W.3d

708, 715 (Ky. 2014). The standard of probable cause is "a fluid concept—

turning on the assessment of probabilities in particular factual contexts—not

readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates,

462 U.S. 213, 232 (1983). It has been defined as "reasonable grounds for belief,

supported by less than prima facie proof but more than mere suspicion."

'Commonwealth v. Jones, 217 S.W.3d 190, 200 (Ky. 2006) (quoting United

States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)) (internal quotation marks

omitted). And judges must consider the totality of the circumstances then


       5 Although the question is not before the Court in this case, the appropriate
avenue for a criminal defendant to seek judicial review of an unfavorable immunity
ruling is likely exactly what Ragland did in this case: file an original writ petition in
the Court of Appeals. Cf. Commonwealth v. Farmer, 423 S.W.3d 690, 698 n.4 (Ky.
2014). Of course, the Court of Appeals denied the petition on the ground that he had
an adequate remedy by appeal or otherwise. Ragland, however, declined to appeal that
decision, which would have been as a matter of right. See CR 76.36(7)(a); see also,
e.g., Russell Cty., Ky. Hosp. Dist. Health Facilities Corp. v. Ephraim McDowell Health,
Inc., 152 S.W.3d 230, 234 (Ky. 2004).
                                            13
known to determine whether probable cause exists to conclude that a

defendant's use of force was unlawful. Rodgers, 285 S.W.3d at 754-55.

       Based on the evidence of record put forth by the Commonwealth at the

probable cause hearing, we have little trouble concluding that the trial court

had a substantial basis for denying Ragland's motion to dismiss. Sergeant

Richardson testified that Mitchell's body was found in his bedroom closet in his

apartment, where he had been badly beaten and strangled. A bloodied frying

pan, which had both Mitchell's and Ragland's DNA on it, was also found in the

closet. And the walls of the closet had been covered in the victim's blood,

demonstrating that Ragland struck Mitchell with the frying pan several times

in the closet.

      Further, a strap was found wrapped around Mitchell's neck, and a boot

or shoe print was discovered on his back, appearing as if Ragland had also

strangled Mitchell by bracing his foot against the man's back and pulling the

strap around his neck. Ragland's DNA was found under Mitchell's fingernails.

The investigation uncovered that Mitchell and Ragland had met at the Hope

Center, and a witness identified Ragland in a photo lineup as the man whom

Mitchell had described as his boyfriend. During interviews with police, Ragland

initially denied any involvement in Mitchell's death, but when confronted with

the DNA evidence months later, he admitted to fighting him and hitting him

with the frying pan, claiming to have done so after Mitchell touched his genitals

when he was sleeping. He did not indicate to police that Mitchell had otherwise

physically attacked him or had a weapon. Mitchell had stood about 5 feet, 5

inches tall and weighed approximately 148 pounds, while Ragland was about
                                       14
six feet tall and weighed around 160 pounds. The altercation did not occur in a

single room, but appeared to have been pursued room-to-room through the

apartment. Ragland also admitted to taking Mitchell's cell phone when he fled

the apartment and to disposing of his own bloody clothes and shoes shortly

thereafter.

      After considering this evidence, the trial court listed the following as its

bases for finding probable cause that Ragland's use of force was unlawful and

unjustified: first, that Ragland never reported being attacked by Mitchell or

fearing for his life; second, that it appeared Ragland had moved Mitchell's body

into the closet, after first striking him with the frying pan in the living room,

and that extensive blood spatter indicated that he continued to strike Mitchell

repeatedly once in the closet; third, that his disposal of his bloody clothes and

footwear in attempting to hide his involvement in Mitchell's death was

inconsistent with acting in self-defense; and fourth, and most determinative,

that the evidence indicating that Mitchell had been strangled in addition to

being badly beaten was not self-defense-type behavior.

      The foregoing clearly constitutes a substantial basis for finding probable

cause and denying Ragland's motion to dismiss. Therefore, the trial court did

not err in determining that Ragland was not entitled to immunity under

KRS 503.085.

   C. Admission of crime-scene and autopsy photographs was not
      error.

      Ragland also claims that eight photographs showing Mitchell's corpse at

the crime scene and during the autopsy had little probative worth and were


                                         15
unduly prejudicial, and that the trial court thus erred in admitting them into

evidence. The photographs show Mitchell's head and torso from various angles

and depict the numerous injuries he sustained, including cuts and bleeding,

bruising, and broken teeth. They also depict the effects of decomposition on

Mitchell's body, including bloating and skin discoloration.

      As a general rule, photographs of a gruesome or graphic nature are not

rendered inadmissible solely because of their gruesomeness. See Funk v.

Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992). But, as this Court recently

made clear, trial courts are not free to apply this general rule blindly to

automatically admit all gruesome photos offered. Instead, "in all cases in which

visual media showing gruesome or repulsive depictions of victims are sought to

be introduced over objection, ... the trial court must conduct the Rule 403

balancing test to determine the admissibility of the proffered evidence." Hall v.

Commonwealth, 468 S.W.3d 814, 823 (Ky. 2015). That is, the trial court must

"weigh the probative value of the gruesome photo in question against the

harmful effects that might flow from its admission to determine whether the

photo should be excluded notwithstanding the general rule." Id.

      In measuring the probative value of the photographs in question, the

court must consider each photograph "within the full evidentiary context of the

case, giving due regard to other evidence admitted as well as evidentiary

alternatives, so as to ascertain each item's 'marginal' or 'incremental' probative

worth for purposes of weighing that value against the risk of prejudice posed by

the evidence." Id. at 824. And to keep out relevant 'yet gruesome evidence, "the

gruesomeness must be such that it creates substantial undue prejudice or
                                        16
other harmful consequences that outweigh the probativeness of the

evidence." Id. The key to understanding at what point the balance between

probative value and undue prejudice is upended, such that additional

gruesome evidence should be excluded, is to recognize the inverse relationship

that exists between the two concepts: "[t]hat is, as the jury is confronted with

gory image after gory image, the inflammatory and prejudicial effect of the

images as a whole increases, while the marginal probativeness of each new

image is less than the one before." Id. at 826.

      Ragland's trial admittedly predated this Court's clarification of the law in

Hall. But even applying the principles and analytical framework that Hall laid

out, it is clear that the trial judge acted within his discretion in admitting the

eight photos at issue here.

      First, there is no doubt that these photographs were relevant and highly

probative of the nature of the deceased victim's injuries. The images were

specifically used by the medical examiner, during his testimony, to illustrate

the various types and degrees of Mitchell's injuries and to explain the likely

mechanisms of injury and causes of death. Furthermore, the photos were

much more probative of the nature of the fatal injuries than other evidentiary

alternatives, which included the medical examiner's rudimentary sketches

diagramming the locations and relative sizes of Mitchell's various injuries, the

medical examiner's bare oral testimony, periodic glimpses of Mitchell's corpse

seen on a video of the crime scene, and blood-spatter evidence in the closet

showing six distinct impacts. This evidence was far less probative of the extent

and nature of Mitchell's fatal injuries. Without the photographs, the
                                         17
Commonwealth's ability to prove the nature of this grisly crime would have

been substantially diminished. And the gruesome photographs were not

excessive. Again, only eight graphic images were introduced, and none of them

were duplicative or otherwise needlessly cumulative. 6

       As to prejudice, while the general gruesomeness of these photographs

inherently presents some danger of prejudice, we do not view them as being so

inflammatory as to outweigh their high probative worth, let alone substantially

outweigh that probativeness. With the exception of the evidence of

decomposition apparent in the images (bloating and discoloration, which the

medical examiner made a point of differentiating from the effects of the

injuries), the photos do not contain any particularly repulsive or otherwise

noteworthy imagery to distinguish them from other similarly grisly images of

deceased victims routinely admitted to prove the corpus delicti or for some

other purpose. We certainly do not believe these eight photographs are so

exceptionally gruesome and inflammatory that their exclusion should be

required in spite of the general rule favoring inclusion, particularly in light of

their substantial probative worth. These photographs are just the sort of

admissible evidence to which the general rule of inclusion of graphic photos

should apply. After all, as this Court has often repeated, "[w]ere the rule

otherwise, the state would be precluded from proving the commission of a

crime that is by nature heinous and repulsive." Ratliff v. Commonwealth, 194




      6 In fact, the trial court partially sustained Ragland's objection to the
Commonwealth's proffer of crime-scene and autopsy photographs as to Exhibits 57
and 61, finding that they were needlessly repetitious of other photographs introduced.
                                          18
S.W.3d 258, 271 (Ky. 2006) (quoting Salisbury v. Commonwealth, 417 S.W.2d

244, 246 (Ky. 1967)).

       However, Ragland contends that Clark v. Commonwealth, 833 S.W.2d

793 (Ky. 1992), a case also involving images of a partially decomposed body,

mandated excluding the complained-of images. But Clark was rendered prior to

the passage of our current Rules of Evidence, and its analysis of the

admissibility of the images and video at issue in that case is not entirely

consistent with the analytical framework now required by KRE 403. And, in

overturning the lower court's ruling on admissibility of gory images, it is largely

an outlier in our case law. Cf. Hall, 468 S.W.3d at 827. Additionally, the split

nature of the four-to-three reversal in Clark, a death-penalty case, further

cautions against assigning its holdings 7 too much weight going forward.

Accordingly, this Court declines Ragland's invitation to extend Clark's pre-

Rules analysis and holding to the photographs at issue in this case.

       In sum, the decision to admit the eight crime-scene and autopsy

photographs at issue was within the judge's discretion. They are highly

probative of the type and extent of injuries inflicted upon Mitchell, facts which


       7  Writing for the majority of the Court, Special Justice O'Daniel found that four
separate and distinct errors each apparently required reversing the defendant's
convictions and death sentence: (1) that gruesome color slides and a video of the crime
scene should not have been admitted because they were unnecessary to show the
victim's injuries and were inflammatory and served to arouse juror's passions, Clark,
833 S.W.2d at 794-95; (2) that evidence of prior, unrelated criminal or violent acts by
the defendant was more prejudicial than probative and, thus, erroneously admitted,
id. at 795; (3) that statements made by the prosecutor improperly minimized the jury's
sense of responsibility for determining the appropriateness of imposing a death
sentence, id. at 795-96; and (4) that evidence praising the victim's character during
the guilt phase, and the prosecutor's exploitation of the impact of the victim's
disappearance on his family, was inflammatory and undermined the defendant's right
to a fair trial, id. at 796-97.
                                           19
are of particular importance to the jury's consideration of Ragland's claim of

self-defense. And although they depict the victim's battered and decomposed

corpse, they are not so inflammatory that their probative value is so

substantially outweighed by their prejudicial effect as to require exclusion. On

remand, the trial court may again, in its discretion, admit these photographs.

    D. Hearsay statement by the victim about "playing house" with
       the defendant should not have been admitted.

       Ragland next claims that the trial court erred in allowing a friend of

Mitchell, Jennifer Preston, to testify that Mitchell had introduced her to

Ragland with the statement, "This is the guy I play house with." Preston

testified that Ragland was present when Mitchell made this statement and that

he said nothing in response. Ragland now argues that this testimony was

unreliable and inadmissible hearsay and, specifically, that the trial court erred

in finding that it was admissible as an adoptive admission under KRE

801A(b)(2).

       To begin, no one has disputed that Preston's testimony about Mitchell's

statement was hearsay—that is, an out-of-court statement offered to prove the

truth of the matter asserted, KRE 801(c)—and was thus inadmissible under

KRE 802, unless it satisfied one of the specific hearsay exceptions provided in

the rules. Nonetheless, the trial court admitted the statement under KRE

801A(b)(2) as an adoptive admission by Ragland because he was present when

it was made and did not deny it.

      KRE 801A(b)(2) provides that "[a] statement is not excluded by the

hearsay rule ... if the statement is offered against a party and is ... [a]


                                          20
statement of which the party has manifested an adoption or belief in its truth."

This rule encompasses both express adoptive admissions and adoptive

admissions implied through acquiescence, which in a few narrow

circumstances may include silence. See Smith v. Commonwealth, 366 S.W.2d

902, 905 (Ky. 1962) ("The implication of admission by silence rests upon the

idea of acquiescence and does not apply unless an acquiescence in what is said

can be presumed."). That is, the declarant's out-of-court statement may be

admitted in the face of a party's (here, Ragland's) silence whenever such silence

itself "manifested an adoption or belief in its truth," KRE 801A(b)(2), in light of

the nature of the out-of-court statement and the circumstances in which it was

made.

        Because KRE 801A(b)(2) has at its core the non-speaking party's

manifestation of an adoption or belief in the truth of the declarant's statement,

a party's mere presence when the statement is made is insufficient to trigger

this hearsay exception. Perdue v. Commonwealth, 916 S.W.2d 148, 158 (Ky.

1995). Instead, a party's passivity or silence will only qualify as an adoptive

admission if it was maintained in response to "statements that would normally

evoke denial by the party if untrue." Robert. G. Lawson, Kentucky Evidence

Law Handbook § 8.20[3][b], at 597 (5th ed. 2013). Furthermore, "[a] statement

may not be admitted as an adoptive admission unless it is established that the

party heard and understood the statement and remained silent."

Commonwealth v. Buford, 197 S.W.3d 66, 73 (Ky. 2006). But "[s]Hence with

respect to a statement will always have some ambiguity," Lawson, supra,

§ 8.20[3][b], at 597, so "trial judges should guard against any possible abuse
                                        21
and hold the admissibility of such evidence to exacting standards," Buford, 197

S.W.3d at 75. As this Court aptly noted over a century ago:

             Acquiescence, to have the effect of an admission, must
      exhibit some act of the mind, and amount to voluntary demeanor
      or conduct of the party. And whether it is acquiescence in the
      conduct or in the language of others, it must plainly appear that
      such conduct was fully known, or the language fully understood by
      the party, before any inference can be drawn from his passiveness
      or silence.

Merriweather v. Commonwealth, 82 S.W.2d 592, 594 (Ky. 1904) (quoting

Greenleaf on Evidence § 197).

      Ragland argues on appeal that Mitchell's "play house" statement, and the

circumstances in which it was made, do not satisfy the conditions necessary

for his failure to respond to the statement to operate as a tacit admission of its

truth. More specifically, he argues that because the hearsay statement was not

incriminating, it does not satisfy the requirement that the statement made be

one that would normally prompt a denial by the accused if untrue. That is, his

position appears to essentially be that only hearsay statements that

incriminate the listener (the defendant) or accuse him of criminal behavior may

be impliedly adopted through silence under KRE 801A(b)(2).

      The Commonwealth counters that Ragland has interpreted the exception

too narrowly in restricting it only to incriminating statements, and that

adoptive admissions through silence may instead apply more broadly to any

undefined statement made in a party's presence that the party would be

expected to deny if untrue. While we agree with the Commonwealth that

adoptive admissions are not necessarily limited to statements that are per se

incriminating or accuse the party of criminal behavior, we disagree with the

                                        22
Commonwealth's contention that the "play house" statement by Mitchell in this

case was the type of statement that would normally evoke denial if untrue.

      Instead, the "play house" hearsay fails as such a statement because, at

most, it merely implied that Mitchell and Ragland had been in a romantic

homosexual relationship, a charge that was in no way accusatory or

incriminating or otherwise made in such circumstances that would normally

evoke denial if untrue.

      Of course, it may be tempting now to expect that Ragland would have

vehemently denied the implications of that statement given that he did

essentially that in subsequent interviews with police and in his testimony at

trial. The present negative perception of Ragland's silence in the face of

Mitchell's statement identifying Ragland as "the guy [Mitchell] play[ed] house

with," however, is due solely to the unfortunate events that occurred after the

statement was made and led to Ragland being charged with Mitchell's murder.

      But the circumstances that would normally evoke denial if a statement is

untrue cannot be those which occur long after the statement is made.

Hindsight has no proper part to play in considering whether a statement was

made "under such circumstances as would seem to call for [the party's denial]

and none is made," such that the party's silence can be considered to have

"impliedly ratified and adopted [such statement] as his own." Griffith, 63

S.W.2d at 596. Instead, that determination should be made with consideration

of the contemporaneous circumstances surrounding the making of the

statement and the silent response to it.



                                        23
       And Ragland is correct that the "play house" statement was ambiguous

as to what Mitchell may have meant when he said it. There are a number of

different ways the statement could be interpreted, some leading to the

conclusion that a romantic or sexual relationship had existed between the two

men and some leading nowhere near such a conclusion. For example, the

statement could easily be interpreted as a joke made by an openly gay man to

his heterosexual friend. If the statement truly was nothing more than one

friend ribbing another (intended, perhaps, to embarrass the heterosexual friend

precisely when he is being introduced to a new female acquaintance), then the

untrue jest would hardly be expected to evoke denial, or at least a serious

denial made outside the context of the jest.

       Due to this ambiguity—not to mention the inherently ambiguous and

unreliable nature of attributing meaning to silence in general—there is no way

to conclude with any reliable degree of certainty that Ragland actually adopted

through silence the Commonwealth's interpretation of Mitchell's statement

(that he and Ragland were a couple) by apparently failing to react in any way

when the statement was made.

      This Court finds that evidence of Mitchell's "play house" statement is

hearsay that should not have been admitted because it did not meet the

criteria of any of the exceptions to the hearsay rule. Specifically, the statement

is not one that would normally be expected to evoke a denial if untrue.

Therefore, Ragland's silence was not an adoptive admission of the statement

under KRE 801A(b)(2), and thus it should be excluded if offered on retrial.



                                        24
   E. Admissibility of character evidence of the victim.

       Next, Ragland argues that the trial court erroneously excluded evidence

showing various character traits of the victim. Specifically, he contends that he

should have been permitted to put on testimony about Mitchell's criminal

history, specifically his prior armed-robbery convictions and parole status; his

being HIV positive; and his habit of buying food and clothing for men he met at

the Hope Center to purchase sexual favors. Ragland argues, broadly, that all of

this evidence was relevant to his self-defense claim and to proving that the

victim was the first aggressor, and that the exclusion of this evidence violated

his right to put on a full defense. We address each item of evidence in turn.

   1. Evidence of the victim's prior criminal history and parole
      status.

      Ragland first claims that he should have been permitted to put on

testimony about Mitchell's violent criminal history. This included testimony

from two witnesses: Detective Robert Wilson would have testified that Mitchell

had previously robbed gas stations using a knife and was convicted of first-

degree robbery; and Jackie Miller would have testified that Mitchell was on

parole because he and another person had robbed six or seven Shell stations in

Fayette County. Ragland argues that he was entitled to introduce this

testimony because he had been charged with a homicide and claimed self-

defense and, therefore, Mitchell's character for violence was a "pertinent trait of

character of the victim of the crime," KRE 404(2)(a), which is admissible if

offered by the accused.




                                        25
       It is true that evidence of a victim's violent character is typically relevant,

and therefore admissible, in self-defense cases because it supports the

defendant's claim that the victim was, in fact, the first aggressor. See

KRE 404(a)(2); Saylor v. Commonwealth, 144 S.W.3d 812, 815 (Ky. 2004). But

where Ragland's argument fails is in ignoring the permissible methods of

proving character as laid out in KRE 405. That is, with only limited exceptions

not applicable here, 8 "[i]n all cases in which evidence of character or a trait of

character of a person is admissible, proof may be made by testimony as to

general reputation in the community or by testimony in the form of opinion."

KRE 405(a) (emphasis added). So, for example, there is no doubt that

testimony from Miller that Mitchell was generally reputed to be a violent person

in their group of friends, or that it was her opinion based on her experiences

with him that he was a violent person, would have been admissible to prove

Mitchell's character for violence.

       The evidence Ragland wanted admitted, however, was not general

reputation or opinion testimony. Instead, it was evidence of specific instances

of conduct by Mitchell offered to show that he was a violent person and that he

acted in conformity with that violent character in this instance, which is, of

course, a prohibited use of other-bad-acts evidence under KRE 404(b). The trial

court committed no error in excluding the evidence on those grounds.




       8 The exceptions are provided in KRE 405(b) (allowing for inquiry, on cross-
examination, into whether the character witness knows about or has heard of relevant
specific instances of conduct) and KRE 405(c) (allowing for proof of specific instances
of a person's conduct whenever the person's character or a trait of character "is an
essential element of a charge, claim, or defense").
                                          26
          Nonetheless, in self-defense cases, a victim's prior violent acts may also

be admitted for another, non-character purpose: as proof of the defendant's

fear of the victim. In that case, evidence of the prior violent act is not being

used to prove the victim's violent character (and, in turn, that the victim was

the initial aggressor), but instead is being used to prove the defendant's state of

mind (fear of the victim) at the time he believed that physical force was needed

to protect himself against the victim's aggression. Saylor, 144 S.W.3d at 815-

16. But for such evidence to be relevant and admissible for this purpose, the

defendant must have known of the victim's prior bad acts at the time he

purportedly acted in self-defense. Baze v. Commonwealth, 965 S.W.2d 817,

824-25 (Ky. 1997). It should go without saying that a defendant's fear of being

physically harmed by another cannot have been influenced by violent acts that

the defendant knew nothing about.

      It does not appear that Ragland ever demonstrated (or even claimed) that

he knew of Mitchell's prior robberies or parole status at the time of their

encounter on December 22, 2010. In the absence of such a showing on retrial,

that evidence should again be excluded as barred by KRE 404(b).

   2. Testimony that the victim was known to be HIV positive.

      Ragland also contends that he was erroneously prevented from

questioning Jackie Miller about her general knowledge that Mitchell was HIV

positive. Miller testified by avowal that for years it had been generally known,

or at least rumored, that Mitchell had HIV or AIDS. 9 Ragland wanted to




      9   The Commonwealth stipulated at trial that Mitchell was, in fact, HIV positive.
                                            27
introduce this testimony as support for his claim that his reaction to Mitchell's

unwanted advances was driven, at least in part, by his fear of contracting HIV.

Because the jury's acceptance of that claim turned on whether he had himself

known about Mitchell's HIV status at the time of the encounter, Ragland

argues, Miller's testimony was relevant because it tended to show that he too

had possessed such knowledge prior to the encounter on December 22.

      As previously discussed, Ragland's state of mind (fear) at the time that he

claims Mitchell was attempting to forcibly compel sex was relevant to his self-

defense claim. Just as with evidence of prior acts of violence, evidence of a

victim's HIV-positive status may be admitted for the purpose of showing the

defendant's fear of the victim and his belief that physical force was necessary to

protect against possible contraction of the disease as a result of the victim's

sexual aggressions. But, again, such evidence is relevant for that purpose only

if the defendant knew of that status at the time of the encounter.

      In contrast to Mitchell's criminal history, Ragland claimed at trial that he

had known about (and feared) Mitchell's HIV at the time of their altercation.

Therefore, assuming Ragland again demonstrates on remand that he had

known that Mitchell was HIV-positive prior to their fight, Miller's testimony that

Mitchell's HIV status had been generally known in the community will be

relevant and admissible to support his claim on retrial.

   3. Testimony about victim's habit of trading food and clothing for
      sex.

      Last, Ragland claims that he should have been permitted to introduce

testimony from Sergeant David Richardson that Mitchell had a history of


                                        28
buying food and clothing for men he met at the Hope Center in exchange for

sexual favors. As with the evidence analyzed in the previous two discussions,

Ragland argues that he had a right to present this testimony as evidence of a

pertinent trait of character of the victim under KRE 402(a)(2). He contends that

this evidence showed that Mitchell had targeted and pursued Ragland when

they met at the Hope Center, which was consistent with his character for luring

potential sexual partners at the shelter with offers of food or clothing (or

perhaps drugs) and, thus, supported his claim that Mitchell was the first

aggressor.

       Whether this evidence should be admitted on retrial is subject to the trial

court's discretion based on the principals elucidated above with respect to

proving the character of the victim as the initial aggressor under KRE 404 and

405. We reiterate that specific acts of conduct by the victim—here, Mitchell's

past exchanges of food and clothing for sexual favors—are inadmissible to

prove action in conformity with such acts. However, it may also be true,

depending on how the evidence is introduced and fleshed out on retrial, that

such evidence may be admissible for some "other purpose" under KRE 404(b)—

such as to prove the modus operandi of the alleged victim-aggressor, see, e.g.,

Clark v. Commonwealth, 223 S.W.3d 90, 96-97 (Ky. 2007)—or perhaps as habit

evidence under KRE 406 if Ragland can satisfy the requirements for

admissibility under that rule. We thus leave the determination of the

admissibility of this evidence to the trial court's discretion should it again be

offered on retrial.



                                         29
                                   III. Conclusion

       For the foregoing reasons, the judgment of conviction and sentence of the

Fayette Circuit Court is reversed, and this matter is remanded for a new trial

consistent with this opinion.

      Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ.,

sitting. All concur. Wright, J., not sitting.




COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
200 Fair Oaks Lane, Suite 500
Frankfort, Kentucky 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

James Hays Lawson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601




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