             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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                                               RENDERED: OCTOBER 23, 2014
                                                                  LIMED

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                              2013-SC-000622-MR
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                                                       DATE        1-1%-k
BILLY GREER                                                           APPELLANT


                ON APPEAL FROM MARSHALL CIRCUIT COURT
V.                  HONORABLE DENNIS FOUST, JUDGE
                            NO. 13-CR-00008


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Billy Greer, appeals as a matter of right, Ky. Const. § 110,

from a judgment entered by the Marshall Circuit Court convicting him of

murder and sentencing him to twenty years' imprisonment. Appellant raises

the following claims: (1) improper opinion testimony given during the course of

the trial deprived him of due process of law; and (2) reversible error occurred

when the trial judge did not submit defense counsel's proposed voluntary

intoxication instruction to the jury. For the following reasons, we affirm the

judgment of the Marshall Circuit Court.


                 I. FACTUAL AND PROCEDURAL BACKGROUND

      Darryl Dominique and his wife, Carrie, drove to Appellant's residence one

afternoon to socialize and drink. After touring Appellant's property and

working on an ATV, the three continued to drink in Appellant's garage. At one

point in the afternoon, Carrie left the garage to go to the bathroom. When she
returned, Darryl and Appellant were scuffling on the floor. Carrie intervened

and, seeing that Appellant was on the losing end of the fight, she yelled for

Darryl to stop. The fighting then ceased, and Darryl followed Carrie toward his

truck so that they could leave. Carrie went to the driver's side. As Darryl

walked around to the passenger side, Appellant picked up a 12-gauge shotgun

and fired it twice. The first shot hit Darryl in the leg; the second shot hit him

in the chest, killing him immediately. Appellant was apprehended by police at

the scene.

      Appellant was charged with murder, and convicted. This appeal

followed.


    II. IMPROPER OPINION TESTIMONY GIVEN DURING THE COURSE OF
         THE TRIAL DID NOT RISE TO THE LEVEL OF PALPABLE ERROR.

      Appellant first argues that he was denied due process by the admission

of improper opinion testimony. We begin by noting that this issue is not

preserved. However, under KRE 103(e), we may review unpreserved claims of

evidentiary error under the palpable error standard. "A palpable error in

applying the Kentucky Rules of Evidence which affects the substantial rights of

a party may be considered . . . by an appellate court on appeal, even though

insufficiently raised or preserved for review, and appropriate relief may be

granted upon a determination that manifest injustice has resulted from the

error." KRE 103(e). "Authorities discussing palpable error consider it to be

composed of two elements: obviousness and seriousness."       Ernst v.

Commonwealth, 160 S.W.3d 744, 759 (Ky. 2005). Thus, in order to find


                                         2
palpable error, the record must reflect that the errors alleged were obvious and

also that such errors resulted in a manifest injustice.

      Specifically, Appellant argues that his right to due process was violated

when Detective Dan Melone, a key witness for the Commonwealth, testified

that: 1) Carrie's version of the incident was consistent with, and was

corroborated by, other evidence; 2) Appellant's inconsistent testimony was

typical of the sort of testimony given by dishonest persons; and 3) that

narcotics officers investigated the scene of the shooting.

      We agree that these aspects of Melone's testimony were improper.

However, we are satisfied that, individually and collectively, they do not rise to

a level resulting in manifest injustice. "To discover manifest injustice, a

reviewing court must plumb the depths of the proceeding . . . to determine

whether the defect in the proceeding was shocking or jurisprudentially

intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). In other

words, when reviewing for manifest injustice, the court must discern whether

there is a substantial possibility that, but for the error, the verdict would have

been different or whether the error resulted .in a fundamentally unfair trial.

Otherwise, the unpreserved error will be held non-prejudicial.    Schoenbachler v.

Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003).

      With respect to Melone's improper opinion testimony concerning Carrie's

veracity and Appellant's dishonesty, upon examination of the record as a

whole, we do not find any substantial possibility that those aspects of Melone's

testimony affected the outcome of the case. Even without Melone's improper


                                         3
bolstering of Carrie's testimony and disparagement of Appellant's testimony,

nevertheless, it was obvious that Appellant had changed his version of the

events a number of times, ranging from not remembering the event at all to the

shooting happening in the garage (which was entirely inconsistent with the

physical evidence at the crime scene). Those inconsistencies could not have

escaped the attention of the jury. Therefore, even without Melone's improper

opinion testimony characterizing the testimony of Carrie and Appellant as,

respectively, honest and dishonest, it was highly probable that the jury, based

upon the properly admitted evidence, would have assigned more credence to

Carrie's version of the events.

      Appellant reminds us that in Ordway v. Commonwealth, 391 S.W.3d 762

(Ky. 2013), we reversed a murder conviction addressing substantially the same

issue: the improper expression of opinion by a testifying police officer

describing how guilty persons act after committing a crime.      Ordway, however,

is easily distinguished from the present case because that proceeding involved

an error of improper opinion testimony that was properly preserved for

appellate review, in combination with a viable allegation of self-defense. Where

trial error is properly preserved for further review, a criminal conviction will be

reversed unless the Commonwealth demonstrates that the error was harmless

under Winstead v. Commonwealth, 283 S.W.3d 678, (Ky. 2009). 1 To the


       1 Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) ("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. Kotteakos v. United States, 328
U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).")

                                          4
contrary, where the error is not preserved, as here, the judgment will be

affirmed upon appellate review unless the appellant establishes that the error

is palpable. "Palpable error is much harder to find [than] harmful error and

will rarely provide relief from a party's failure to properly preserve errors in

offering and objecting to evidence." Robert G. Lawson, The Kentucky Evidence

Law Handbook, § 1.10[7][b] (5th ed. 2013). We agree with Appellant that the

admission of the testimony was error, but for the reasons already explained, we

are satisfied that it does not meet the standard for palpable error.

      Finally, Appellant also argues that Melone's reference to the presence of

narcotics officers at the scene of the shooting resulted in a manifest injustice.

Detective Melone testified that "[S]ome narcotics agents . . . came out to assist

us in gathering evidence that I had found. They came out there and I asked

them to bag things . . . ." However, there was no mention of any controlled

substances being found at the scene, nor was there any further comment by

the Commonwealth regarding drugs.

      Although not mentioned in the testimony at Appellant's murder trial,

illegal drugs were found upon Appellant's property when the shooting was

investigated. Drug charges arising from that discovery were severed from the

murder case for a separate trial. The parties agreed that evidence concerning

the drug charges was not relevant to the murder charge.

      We do not find that Detective Melone's improper reference to the

presence of narcotics agents at the scene of the murder resulted in a manifest

injustice. The single reference to narcotics officers was isolated and fleeting,


                                          5
and was not otherwise emphasized by the Commonwealth in presenting its

case against Appellant, and thus the error does not justify reversing the

conviction.

      In sum, nothing in the record indicates that these irregularities in the

proceeding rose to the level of being "shocking or jurisprudentially intolerable."

Martin, 207 S.W.3d at 3. Nor does the record reflect that these alleged defects

substantially affected the outcome of the case.   Schoenbachler, 95 S.W.3d at

836. Accordingly, we reject Appellant's argument that the introduction of

Detective Melone's statements constituted palpable error.


     III. THE TRIAL COURT'S DECISION NOT TO TENDER A VOLUNTARY
                  INTOXICATION INSTRUCTION WAS PROPER.

      Finally, Appellant contends that reversible error occurred when the trial

court refused to instruct the jury on the effect of voluntary intoxication. A trial

court is required to instruct the jury on every theory that is reasonably

deducible from the evidence. Manning v. Commonwealth, 23 S.W.3d 610, 615

(Ky. 2000). An instruction on voluntary intoxication is only warranted "where

there is evidence reasonably sufficient to prove that the defendant was so

drunk that he did not know what he was doing." Harris v. Commonwealth, 313

S.W.3d 40, 50 (Ky. 2010) (citations omitted). Mere drunkenness will not

suffice; in order to receive an instruction on voluntary intoxication, there must

be evidence sufficient to establish that the defendant was so drunk that he was

incapable of forming the requisite mens rea for a specific intent crime.    Nichols

v. Commonwealth, 142 S.W.3d 683 (Ky. 2004).


                                         6
      Evidence at trial indicated that Appellant consumed "eight or nine beers"

in approximately a four hour period on the day of the shooting. During that

same period of time, Appellant was able to drive Carrie and Darryl around on

his ATV; he was also able to discuss mechanical problems he was having with

his ATV as he and Darryl worked to fix them. Police conducted an interview

with Appellant a mere thirty minutes after the shooting and audio from this

interview was played for the jury at trial. While the Appellant's speech on the

tape is somewhat slurred, there is no doubt that his voice evinces a man still in

possession of his faculties. Based upon the foregoing factors, the evidence

does not support a reasonable belief that Appellant was so intoxicated that he

lacked the ability to form the intent to commit murder.

      It is well established that "although a trial judge has a duty to prepare

and give instructions on the whole law of the case, including any lesser

included offenses which are supported by the evidence, that duty does not

require an instruction on a theory with no evidentiary foundation."    Houston v.

Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998) (citations omitted). Here there

was an insufficient evidentiary foundation to support a voluntary intoxication

instruction, and so the trial court properly denied Appellant's request for a

voluntary intoxication instruction.


                                 IV. CONCLUSION

      For the aforementioned reasons, we affirm the judgment of the Marshall

Circuit Court.

      All sitting. All concur.

                                        7
COUNSEL FOR APPELLANT:

Samuel N. Potter
Department Of Public Advocacy
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General Of Kentucky

James Coleman Shackelford
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General




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