         IMPORTANT NOTICE
    NOT TO B E PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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                                                     RENDERED : JUNE 17, 2010
                                                        NOT TO BE PUBLISHED

                  ,-Vuyrrmt Xxurf of ~firufurhv
                               2008-SC-000914-MR


 KEITH K. MOORE                                                        APPELLANT



                     ON APPEAL FROM BULLITT CIRCUIT COURT
 V                   HONORABLE RODNEY D . BURRESS, JUDGE
                                NO . 07-CR-00049



 COMMONWEALTH OF KENTUCKY                                               APPELLEE


                      MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

        Appellant, Keith K. Moore, appeals as a matter of right' from a judgment

entered upon a jury verdict by the Bullitt Circuit Court convicting him of

murder, complicity to tampering with physical evidence, first-degree unlawful

imprisonment, complicity to retaliating against a participant in a legal process,

and second-degree wanton endangerment. For these crimes, Moore was

sentenced to life imprisonment .

       On appeal, Moore , contends that the trial court erred by limiting his

introduction of prior threats made against him by the victim ; by giving

incomplete self-defense instructions ; and by failing to hold a pretrial hearing

addressing the immunity provisions contained in KRS 503 .085. For the

reasons stated below, we affirm.

1 Ky. Const. § 110(2)(b) .
                  I . FACTUAL AND PROCEDURAL BACKGROUND

        In the light most favorable to the verdict, the facts are as follows . In

 December 2006, Moore and murder victim Timothy Nevitt were living together

 in a trailer owned by Moore's father. Moore's father objected to Nevitt living in

 the trailer and told Moore that Nevitt would have to move out. On December

 31, 2006, Moore told Nevitt he would have to move out of the trailer. Nevitt

 was displeased about being told to move, and refused to leave. After Moore told

 Nevitt to leave, Nevitt repeatedly threatened Moore.

       On January 16, 2007, Moore shot and killed Nevitt. Nevitt's girlfriend,

 Danielle Walker, witnessed the shooting. At about 8 :00 p.m. that day, Walker,

 Nevitt, and Moore sat at Moore's kitchen table, and began discussing Nevitt

moving out of the trailer . Moore said to the effect that he did not want "to hear

Nevitt's mouth anymore," and that he loved Nevitt. Moore then stood up,

pulled a gun from the back of his pants, and shot Nevitt twice, killing him .

      Afterward, Moore called a friend, Mark McCubbins, and asked him to

help hide Nevitt's body. McCubbins refused, but when asked by Moore if he

would "take care" of Walker if he got locked up, McCubbins said that he would .

Walker interpreted the exchange to mean that McCubbins agreed to kill her in

the event Moore was arrested .

      Moore and Walker went to Paul Cipparone's residence, picked him up,

and returned to the trailer. They loaded Nevitt's body into the trunk, drove to

an area near the trailer, covered the body with branches and twigs, and left.
       The next day, Moore and Walker parked Nevitt's vehicle at a bar to try

 and make it look like he had been there drinking. Moore threatened Walker

 that if she tried to escape, he would shoot her.

       On January 18, 2007, Moore told Walker that he was going to leave but

 that he had someone watching the trailer, and if she tried to leave the person

 watching would kill her. Once Moore was gone, Walker called the police and

 told them what happened. Based upon Walker's information, Moore was

arrested .

       Following his arrest, Moore gave a statement to the police in which he

claimed that Nevitt had repeatedly threatened him . He stated that on January

16, 2007, Nevitt again threatened him and attacked him with a knife. He

claimed that as a result of the knife attack, he shot Nevitt in self-defense .

Moore did not testify at trial, but his statement to police was played to the jury.

      Based upon the above events, in February 2007, Moore was indicted by

the Bullitt County Grand Jury and charged with : murder for shooting Nevitt;

complicity to tampering with physical evidence for the attempted cover-up

following the shooting; kidnapping for detaining Walker for two days following

the shooting; complicity to retaliating against a participant in a legal process

for acting with McCubbins to threaten to "take care" of Walker in the event

Moore was arrested; and first-degree wanton endangerment for holding a

handgun to Walker's head during the course of the events .

     Following a jury trial, the jury found Moore guilty of. murder ; complicity
  to tampering with physical evidence ; the lesser included offense of first-degree

 unlawful imprisonment (he was acquitted on the charge of kidnapping) ;

 complicity to retaliating against a participant in a legal process; and the lesser

 included offense of second-degree wanton endangerment (he was acquitted on

 the charge of first-degree wanton endangerment) . The jury recommended a

 total sentence of life imprisonment . On November 26, 2008, the trial court

 entered judgment in accordance with the jury's verdict and sentencing
                                                s



 recommendation . This appeal followed .

              II . THE TRIAL COURT PROPERLY LIMITED TESTIMONY
                  RELATING TO NEVITT'S T HREATS AGAINST MOORE

        Moore first argues that the trial court erred by excluding threatening

 statements made by Nevitt against him prior to January 1, 2007 .2 He alleges

that the exclusion of the statements violated the evidentiary rule that a

defendant is entitled to admit into evidence prior threats made by the victim

against the defendant that the defendant knows about, and also violated his

constitutional right to present a defense.

       At trial, Moore argued that the shooting was in self-defense, and sought

to admit the threatening statements Nevitt made before the shooting. The trial

court ruled that only the threats made by Nevitt after Moore ordered him to

leave the trailer on December 31, 2006, would be admissible . The trial court

reasoned that Moore's demand that Nevitt leave the trailer was the onset of the



2 Moore had identified December 31, 2006, as the day of the request to leave, but the
   trial court used the next day, January 1, 2007, as the cut-off day. The difference is
   of no significance because no threat made on December 31, 2006, was excluded .
relevant conflict, and accordingly that only the threats made after that date

were relevant.

      During the trial, several threats made by Nevitt toward Moore were

admitted into evidence . However, Moore also sought to admit testimony from

Buddy Arnett and Donald Hutton regarding threats by Nevitt made prior to

January 1, 2007 . The trial court excluded the evidence, and Moore instead

placed the statements into the record by avowal.

      Arnett testified by avowal that he heard a phone message Nevitt left for

Moore. In the message Nevitt told Moore that he was not going to leave the

trailer and was going to make it so that Moore would have to kill him . Arnett

did not know when the message was left, but Moore had played it for him

"maybe a week" before the date of the shooting. Hutton stated in his avowal

testimony that he heard Nevitt threaten Moore "around the holidays" in 2006 .

      The rule concerning the admissibility of prior threats made by the victim

against the defendant which the defendant knows about is explained in Saylor

v. Commonwealth, 144 S.W.3d 812, 816-817 (Ky. 2004) :

     Generally, a homicide defendant may introduce evidence of the
     victim's character for violence in support of a claim that he acted
     in self-defense or that the victim was the initial aggressor . KRE
     404(a)(2); Johnson v. Commonwealth, Ky., 477 S .W .2d 159, 161
     (1972) ; Robert G. Lawson, The Kentucky Evidence Law Handbook §
     2 .15[4][b], at 104 (4th ed. LexisNexis 2003) .       However, such
     evidence may only be in the form of reputation or opinion, not
     specific acts of misconduct . KRE 405(a) ; Lawson, supra, §-2 .20 [4],
     at 116 ("By providing only for the use of reputation or opinion
     evidence in this situation, the rule plainly implies a prohibition on
     evidence of particular acts of conduct.") . Specifically, in Johnson,
     our predecessor court held that a homicide defendant could not
        introduce the victim's police record for the purpose of showing his
        propensity for violence . Johnson, 477 S.W.2d at 161 .

       An exception exists, however, when evidence of the victim's prior
        acts of violence, threats, and even hearsay evidence of such acts
       and threats, is offered to prove that the defendant so feared the
       victim that he believed it was necessary to use physical force (or
       deadly physical force) in self-protection, "provided that the
       defendant knew of such acts, threats, or statements at the time of
       the encounter." Lawson, supra, § 2 .15[4][d], at 105-06 . See also
       Commonwealth v. Higgs, Ky., 59 S .W.3d 886, 892 (2001) ;
       Commonwealth v. Davis, Ky., 14 S.W.3d 9, 14 (2000) ; Wilson v.
       Commonwealth, Ky.App ., 880 S.W.2d 877, 878 (1994) . In that
       scenario, the evidence is not offered to prove the victim's character
       to show action in conformity therewith but to prove the defendant's
       state of mind (fear of the victim) at the time he acted in self-
       defense . "Obviously, such evidence could not be used to prove fear
       by the accused without accompanying proof that the defendant
       knew of such matters at the time of the alleged homicide or
       assault." Lawson, supra, § 2 .15[4][d], at 106 (citing Baze v.
       Commonwealth, Ky., 965 S.W .2d 817, 824-25 (1997)) .

       A trial court's ruling with regard to the exclusion of marginally relevant

evidence is reviewed on appeal for an abuse of discretion, Foley v.

Commonwealth, 953 S.W.2d 924, 938 (Ky.1997), Anderson v. Commonwealth,

231 S .W .3d 117,119 (Ky. 2007), i.e. "whether the trial judge's decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal

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

      The evidence demonstrates that Moore's demand on December 31, 2006,

that Nevitt leave the trailer instigated the conflict leading up to the shooting .

Thus, the trial court's ruling which excluded evidence of threats made before

that date was not arbitrarily, unreasonably, or unfairly determined . To the

contrary, the ruling was designed to freely admit threats made during the
  relevant time period, and to exclude those that were not. Further, the ruling

 was based upon established legal principles relating to relevancy contained in

 KRE 402 and KRE 403 . Based upon Moore's own statement, the trial court

 reasonably defined the relevant time frame, and properly limited threat

 evidence to this period. It follows that the trial court's ruling limiting the

 admission of threats was not an abuse of discretion .

       Citing Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003), Moore also

 contends that the trial court's ruling violated his constitutional right to-present

 a defense . We disagree .

       Chambers v. Mississippi, 410 U .S . 284, 302 (1973), states that "where

 constitutional rights directly affecting the ascertainment of guilt are implicated,

 [evidentiary rules] may not be applied mechanistically to defeat the ends of

justice." As applicable here, Moore's argument is that by excluding threats

prior to January 1, 2007, the trial court violated this principle. However, as

noted in Mills v. Commonwealth, 996 S.W.2d 473, 489 (Ky. 1999), "Chambers

holds that application of evidentiary rules cannot be applied so as to

completely bar all avenues for presenting a viable defense . It does not hold

that evidentiary rules cannot be applied so as to properly channel the avenues

available for presenting a defense."

      Rather than completely barring all avenues for presenting a self-defense

theory, the trial court's ruling allowed the admission of multiple instances of

Nevitt's threats against Moore. For example, Moore concedes in his brief that
 one witness testified that Moore and Nevitt "were always going at it," that both

 "exchanged threats," and that Nevitt frequently threatened to beat Moore up.

Another witness testified that after Moore asked Nevitt to move out, Nevitt

"would threaten [Moore] and it would be confrontational . [Nevitt] wouldn't

leave . He'd start running his mouth with [Moore]," and that whenever Moore

would tell Nevitt to leave, Nevitt "would bust back into the trailer." A third

witness testified that about a week before Nevitt's death, Nevitt "came face-to-

face" with defendant, they cussed each other, and Nevitt "reached for his

pocket." Further, Moore's father testified regarding a telephone message

wherein Nevitt warned Moore to "be ready to meet your maker" and threatened

to kill Moore's family . In addition, the jury heard Moore's statement to police

where he recounted several threats made by Nevitt.

      Thus, substantial evidence concerning threats made by Nevitt following

the demand that he leave the trailer was presented to the jury. The point that

Nevitt had threatened Moore was more than adequately made under the trial

court's ruling. Accordingly, the additional threats sought to be presented by

Moore were cumulative to the threats that were admitted . There was no

violation of Moore's constitutional right to present a defense .

      In summary, the trial court properly excluded threats made by Nevitt

which preceded Moore's order to vacate the trailer on December 31, 2006 .

    III. THERE WAS NO ERROR IN THE SELF-DEFENSE INSTRUCTIONS

      Moore next claims that the trial court failed to give a proper self-
 protection instruction . He contends that the instructions erroneously: (1)

 failed to instruct the jury of his right to use self-defense in protection of his

property pursuant to KRS 503 .080 ; (2) failed to instruct the jury of his right to

use self-defense to protect against a robbery or other violent felony pursuant to

KRS 503 .080; and (3) failed to instruct the jury that he had no duty to retreat

pursuant to KRS Chapter 503 .

Protection of Property

       In his tendered instructions, Moore's self-protection instruction

substantially mirrored the instruction ultimately given by the trial court. The

murder instruction, second-degree manslaughter instruction, and reckless

homicide instruction permitted conviction only if, in shooting Nevitt, Moore

"was not privileged to act in self protection." However, Moore's tendered

instruction, in addition, would have permitted conviction only if Moore "was

not privileged to act in protection of his property." The trial court sustained the

Commonwealth's objection to the instruction.

      The statutory provision relied upon by Moore in support of the protection

of property instruction is KRS 503 .080, which provides, in relevant part, as

follows

      (2) The use of deadly physical force by a defendant upon another
      person is justifiable under subsection (1) only when the defendant
      believes that the person against whom such force is used is :



             (b) Committing or attempting to commit a burglary, robbery,
             or other felony involving the use of force, or under those
             circumstances permitted pursuant to KRS 503 .055, of such
             dwelling;

       It is the trial court's duty to instruct jurors on the whole law of the case,

 including every theory "deducible or supported to any extent by the testimony."

 Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) .

       The evidence in support of a self-protection instruction was that Nevitt

 was attacking Moore with a knife at the time of the shooting. However, the

 evidence further demonstrated that Nevitt's motive for the alleged knife attack

was anger at being ordered to leave the trailer. No evidence was presented

indicating that Nevitt sought to rob or steal from Moore, or to damage his

property. There is no duty to instruct on a theory unsupported by the proof.

Payne v. Commonwealth, 656 S .W.2d 719, 721 (Ky. 1983) . As such, the trial

court properly denied the proposed protection of property instruction .

Protection against Robbery or other Violent Felony

      Also in reliance upon KRS 503 .080(2)(b), Moore contends that the trial

court erred by failing to instruct the jury on his entitlement to use self-

protection against a robbery or other felony involving the use of force. Moore

concedes that this issue is not preserved, and requests palpable error review

pursuant to RCr 10.26.

      As explained above, the only motive demonstrated by the evidence for

any attack by Nevitt against Moore was his anger at being asked to leave the

trailer . There was no evidence presented of a robbery motive . In his statement
 to police, Moore did not allege that Nevitt was attempting to rob him at the time

 of the shooting. Nor does Moore identify any "other felony involving the use of

 force" which would not be encompassed in the self-protection instruction that

 was given, which authorized him to "use deadly physical force [ifl in so doing

 . . . he believed it to be necessary in order to protect. himself from death or

 serious physical injury at the hands of Timothy Nevitt."

          Thus, no error occurred, and, even if we were to conclude otherwise, any

 error was not palpable error. Brewer v. Commonwealth, 206 S .W.3d 343, 349

 (Ky. 2006) (Explaining that palpable error requires a substantial possibility that

the outcome of the defendant's case would have been different absent the

error.)

Duty to Retreat

          Lastly, Moore contends that the trial court erred by failing to instruct the

jury, pursuant to KRS Chapter 503, that he did not have a duty to retreat from

Nevitt's alleged knife attack . Moore concedes that this issue is not preserved,

but requests palpable error review.

      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 ."
 See also KRS 503.080(3) ; KRS 503 .050(4) ; KRS 503 .070(3) .

        The criminal conduct giving rise to the murder charge occurred after the

 effective date of the codification of the no duty to retreat rule into KRS Chapter

 503. See Hannah v. Commonwealth, 306 S .W.3d 509,514-515 (Ky. 2010) .

 Accordingly, if requested, a no duty to retreat instruction would have been

 proper . See William S. Cooper and Donald P. Cetrulo, Kentucky Instructions to

 Juries, Criminal § 11 .07 (5th ed . 2007) .

       However, "the jury undoubtedly took into consideration the situs of the

shooting in deciding the crucial issue of whether the appellant was justified in

using the amount of force he did in repelling" the alleged attack by Nevitt.

Combs v. Commonwealth, 306 S .W.2d 269, 271 (Ky. 1957) . As such, we are

persuaded that there is not a reasonable possibility that any error resulting

from the omission of the instruction affected the verdict.

   IV. THE TRIAL COURT ERRED BY FAILING TO CONDUCT A PRETRIAL
  HEARING PURSUANT TO KRS 503 .085, BUT TH E ERROR WAS HARMLESS

       Moore lastly argues that the trial court erred by failing to conduct a

pretrial hearing addressing the immunity provisions contained in KRS 503 .085 .

       Prior to trial, Moore filed a motion requesting the trial court to dismiss

the murder charge based upon the immunity provisions contained in KRS

503 .085 . The motion further requested a hearing to determine if he was

entitled to protection under the statute . The Commonwealth responded in

opposition . On October 16, 2007, the trial court entered an order denying the
 motion, stating,

         Where the Defendant has alleged self defense and that claim was
         submitted to the Grand Jury, as in this case, this Court does not
         believe that a Defendant is entitled to a pretrial hearing where a
         trial judge would second guess the Grand Jury and determine,
         based upon the evidence, if he is immune from prosecution
         pursuant to KRS 503 .085(l) .

 The trial court denied Moore's motion to reconsider the ruling.

         KRS 503 .085 provides, in relevant part, as follows :

         (1) A person who uses force as permitted in KRS 503 .050,[ 3 ]
         503 .055,[4 ] 503.070,[ 5 ] and 503 .080[ 6 ] is justified in using such
         force and is immune from criminal prosecution and civil action for
         the use of such force, unless the person against whom the force
         was used is a peace officer, as defined in KRS 446.010, who was
         acting in the performance of his or her official duties and the
         officer identified himself or herself in accordance with any
         applicable law, or the person using force knew or reasonably
         should have known that the person was a peace officer. As used in
         this subsection, the term "criminal prosecution" includes arresting,
         detaining in custody, and charging or prosecuting the defendant.

         (2) A law enforcement agency may use standard procedures for
         investigating the use of force as described in subsection (1) of this
         section, but the agency may not arrest the person for using force
         unless it determines that there is probable cause that the force
         that was used was unlawful .

         In Rodgers v. Commonwealth, 285 S .W.3d 740 (Ky. 2009), we discussed
the parameters of the statute in relation to a defendant's entitlement to pretrial

review for a determination of whether KRS 503 .085's immunity provisions

apply:


3 Use of physical force in self-protection .
4 Use of defensive force regarding dwelling, residence, or occupied vehicle .
5 Protection of another.
6 Protection of property .



                                            13
 . . . . [T]he only express indication of legislative intent is in KRS
 503 .085(2) which provides that immunity must be granted pre-
 arrest by the law enforcement agency investigating the crime
 unless there is `probable cause that the force used was unlawful.'
 Because the statute defines the `criminal prosecution' from which a
 defendant justifiably acting in self-defense is immune to be
 `arresting, detaining in custody and charging or prosecuting,' we
 can infer that the immunity determination is not confined to law
 enforcement personnel . Instead, the statute contemplates that the
 prosecutor and the courts may also be called upon to determine
 whether a particular defendant is entitled to KRS 503 .085
 immunity . Regardless of who is addressing the immunity claim,
we infer from the statute that the controlling standard of proof
remains `probable cause.' Thus, in order for the prosecutor to
bring charges or seek an indictment, there must be probable cause
to conclude that the force used by the defendant was not fully
justified under the controlling provision or provisions of KRS
Chapter 503. Similarly, once the matter is before a judge, if the
defendant claims immunity the court must dismiss the case unless
there is probable cause to conclude that the force used was not
legally justified .

. . . . Just as judges consider the totality of the circumstances in
determining whether probable cause exists to issue a search
warrant, they must consider all of the circumstances then known
to determine whether probable cause exists to conclude that a
defendant's use of force was unlawful . If such cause does not
exist, immunity must be granted and, conversely, if it does exist,
the matter must proceed.

Because immunity is designed to relieve a defendant from the
burdens of litigation, it is obvious that a defendant should be able
to invoke KRS 503 .085(1) at the earliest stage of the proceeding.
While the trial courts need not address the issue sua sponte, once
the defendant raises the immunity bar by motion, the court must
proceed expeditiously. Thus a defendant may invoke KRS 503 .085
immunity and seek a determination at the preliminary hearing in
district court or, alternatively, he may elect to await the outcome of
the grand jury proceedings and, if indicted, present his motion to the
circuit judge. A defendant may not, however, seek dismissal on
immunity grounds in both courts . Once the district court finds
probable cause to believe that the defendant's use of force was
unlawful, the circuit court should not revisit the issue . In the case
of a direct submission or where a defendant has elected to wait and
      invoke immunity in the circuit court, the issue should be raised
      promptly so that it can be addressed as a threshold motion.

      The sole remaining issue is how the trial courts should proceed in
      determining probable cause . The burden is on the Commonwealth
      to establish probable cause and it may do so by directing the
      court's attention to the evidence of record including witness
      statements, investigative letters prepared by law enforcement
      officers, photographs and other documents of record . Although
      Rodgers advocates an evidentiary hearing at which the defendant
      may counter probable cause with proof `by a preponderance of the
      evidence' that the force was justified, this concept finds no support
      in the statute. The legislature did not delineate an evidentiary
      hearing and the only standard ofproof against which a defendant's
      conduct must be measured is the aforementioned probable cause.
      We decline to create a hearing right that the statute does not
      recognize and note that there are several compelling reasons for
      our conclusion.

Id. at 755 . (emphasis added) .

      As the discussion from Rodgers reflects, the trial court erred by

concluding that it was not authorized to "second-guess" the Grand Jury.

Rodgers specifically provides that a defendant may elect to wait until after his

indictment and then bring his immunity claim in the circuit court. Thus,

Moore was entitled to an independent probable cause review, after the

indictment, by the trial court without deference to the Grand Jury's

determinations . Accordingly, the trial court erred by failing to undertake an

individualized probable cause review.

      However, as explained in Rodgers, Moore was not entitled to an

evidentiary hearing to address his claim of immunity. The trial court properly

denied his motion for an evidentiary hearing.
        Nevertheless, as in   Rodgers,   the trial court's failure? to conduct an

 independent probable cause review "is purely academic" as to Moore "because

 he has been tried and convicted by a properly instructed jury in a trial with no

 reversible error." Id. at 756. "In short, his 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." 1d. Moore suffered no discernible prejudice.

 Indeed, if the trial court had followed the procedure outlined in     Rodgers,

 "applying the probable cause standard would have produced the same

 conclusion, no entitlement to immunity and denial of [Moore's] motion to

dismiss." Id. Accordingly, the error was harmless .

                                   V. CONCLUSION

       For the foregoing reasons the judgment of the Bullitt Circuit Court is

affirmed .

       Abramson, Cunningham, Noble, Schroder, Scott and Venters, JJ.,

concur. Minton, C.J., concurs in result only.




7 Rodgers was rendered June 25, 2009, and the trial court did not have the benefit of
   its guidance at the time it was considering Moore's motion for a determination of his
   entitlement to immunity under KRS 503 .085 .


                                           16
COUNSEL FOR APPELLANT :

Jamesa J . Drake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Jeffrey Allan Cross
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
