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RENDERED: FEBRUARY 24, 2022

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0521-MR

JUSTIN DENIHAN APPELLANT

ON APPEAL FROM WARREN CIRCUIT COURT

V. HONORABLE JOHN GRISE, JUDGE 

NO. 17-CR-01075

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Justin Denihan appeals as a matter of right1 from the Warren Circuit 

Court judgment sentencing him to life imprisonment following his guilty plea to 

murder, abuse of a corpse, and tampering with physical evidence. On appeal, 

Denihan argues that the tote in which he stuffed the victim’s body was 

improperly displayed to the jury during the sentencing phase of trial, in 

violation of KRE2 403, and unduly swayed the jury to recommend the 

maximum sentence on all charges. We affirm the trial court’s judgment.

 

1 Ky. Const. § 110(2)(b).

2 Kentucky Rules of Evidence.
2

I. Facts and Procedural Background

The facts of this case are largely undisputed and not at issue on appeal. 

Denihan has a history of substance abuse and often used drugs with the 

victim, Kelly Hackett, a woman with whom he lived and had an ongoing sexual 

relationship. The day before Denihan murdered her, he tried to kill himself. 

Following his unsuccessful suicide, Denihan was at Hackett’s home watching a 

movie with her; they started having sex, then he strangled her, cut into her 

chest area with a knife to carve an “L” shape, bound her feet with an extension 

cord, shoved her body inside a plastic storage tote and taped the lid shut with 

duct tape. He left the tote in a room in Hackett’s home. Denihan claims he 

does not remember the details of the entire encounter, since he was high on 

drugs, but does not dispute that he killed Hackett and stored her body in the 

tote.

Deputy Sam Scarborough who was dispatched to the scene found the 

tote duct-taped shut and shoved under a desk. Inside, Hackett’s body laid on 

her back, nude from the waist down, with her knees pushed up to her chest. 

Her head was covered with a trash bag, her ankles bound with an extension 

cord, and two knives were lying near her knees. 

The forensic pathologist who performed Hackett’s autopsy, Dr. Donna 

Stewart, testified that Hackett suffered multiple injuries secondary to an 

assault including assault-like strangulation injuries and sharp-force injuries. 

Dr. Stewart testified that Hackett could have died from strangulation or the 

knife wound in her chest.
3

Denihan pled guilty to all charges, acknowledging during the sentencing 

trial that he had no doubt in his mind that he killed Hackett and that he was 

pleading guilty of his own volition. Ultimately, the jury recommended life 

imprisonment for murder, 12 months’ imprisonment for abuse of a corpse, and 

5 years’ imprisonment for tampering with physical evidence. The trial court 

imposed the recommended sentence but ordered it to run concurrently for a 

total life sentence. This appeal followed.

II. Standard of Review

This Court reviews evidentiary decisions of the trial court, such as 

whether to admit or exclude evidence, for an abuse of discretion. Rucker v. 

Commonwealth, 521 S.W.3d 562, 569 (Ky. 2017); Goodyear Tire & Rubber Co. 

v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). An abuse of discretion occurs if 

the trial court’s ruling was “arbitrary, unreasonable, unfair, or unsupported by 

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

1999). However, unpreserved evidentiary challenges, such as here, are subject 

to palpable error review under RCr3 10.26.

Under RCr 10.26, an unpreserved error may generally be noticed on 

appeal if the error is palpable and if it affects the substantial rights 

of a party. Even then, relief is appropriate only upon a determination 

that manifest injustice resulted from the error. For an error to rise 

to the level of palpable, it must be easily perceptible, plain, obvious 

and readily noticeable.

Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotations 

omitted).

 

3 Kentucky Rules of Criminal Procedure. 
4

III. Analysis

Denihan argues that allowing the Commonwealth to visually present the 

tote while cross-examining him violated KRE 403 and unduly prejudiced him. 

Denihan never objected to the introduction of the tote into evidence. However, 

prior to the defense’s presentation of its case, Denihan’s counsel requested that 

the tote be moved out of the jury’s sight while she questioned defense 

witnesses, claiming that the visibility of the tote was upsetting to Denihan and 

his father. The Commonwealth did not object. The trial court indicated that it 

would defer to the Commonwealth as to the placement of the tote during its 

case-in-chief but that it could be moved, or even removed from the courtroom 

entirely, when the defense presented its witnesses. Defense counsel stated 

that removal of the tote from the courtroom was unnecessary; counsel simply 

wanted to move it to where it would not be seen by the witnesses or jury. At no 

point did defense counsel mention KRE 403 or raise any other rule of evidence. 

During direct examination of Denihan, defense counsel mentioned the 

tote and Denihan testified how seeing it upset him and made what he did to 

Hackett seem so real. On cross-examination, the Commonwealth questioned 

Denihan about the tote and its relation to the murder and brought it out into

view. The Commonwealth questioned Denihan about what he remembered, 

specifically whether he recalled binding Hackett’s legs with an extension cord 

“so she wouldn’t flop out of the tote.” Defense counsel objected, without 

stating a basis. The trial court overruled the objection. Later, defense counsel 

complained about the Commonwealth’s entire line of questioning surrounding 
5

Denihan’s memory of the murder, insisting that Denihan had already answered 

those questions. The trial court again overruled the objection. At no point 

during the Commonwealth’s cross-examination of Denihan did defense counsel 

object to the placement of the tote.

Denihan now argues that the Commonwealth presenting the tote while

cross-examining him violated KRE 403. But Kentucky law is clear that 

objecting on one basis does not preserve every possible objection arising from 

an item of evidence. See Fairrow v. Commonwealth, 175 S.W.3d 601, 607 (Ky. 

2005) (“When a party states grounds for an objection at trial, that party cannot 

assert a different basis for the objection on appeal[]” (citations omitted)). Since 

Denihan did not raise a KRE 403 objection at any relevant point during trial, or 

object to the admission of the tote into evidence, or its location during crossexamination, his claim is unpreserved, and we will review it only for palpable 

error.

All relevant evidence is admissible pursuant to KRE 402. Relevant 

evidence is defined as “evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” KRE 401. 

“Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of undue prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay, or needless 

presentation of cumulative evidence.” KRE 403. The prohibition on the 

cumulative presentation of evidence is designed “to give courts needed 
6

discretion to control tireless litigators and to conduct trials efficiently.” Ten 

Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 715 (Ky. 2009) (quotations and 

citation omitted). “The task of weighing the probative value and undue 

prejudice of proffered evidence is inherently factual and, therefore, within the 

discretion of the trial court.” Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 

2015) (citation omitted). 

Denihan asserts that the tote essentially functioned as Hackett’s coffin 

and even if relevant, was gruesome, cumulative, and inflammatory evidence 

that unduly prejudiced the jury. He points out that several photos introduced 

into evidence at trial contained the tote, including pictures of the tote 

unopened in Hackett’s home, opened with Hackett’s body visible, and with the 

knives tucked in the tote next to her knees. A video of the crime scene was 

also shown to the jury, which ended at the tote, showing Hackett’s body inside. 

Denihan maintains that considering this evidence, and the testimony elicited 

from the Commonwealth’s witnesses, the tote was not necessary for a full 

understanding of the case.

Denihan further alleges that the tote was inflammatory, as its tangible 

form allowed for immediate sensory observation in a way that a photo does not

and served no other purpose than to incite an emotional response from the 

jury. He avers the harmful and prejudicial consequences of the tote 

substantially outweighed the probative value; because no one disputed 

Denihan’s guilt, and alternative evidence in the form of photos and video was 

presented, the physical evidence of the tote in the courtroom was of low 
7

probative value and high prejudice, causing the jury to recommend the 

maximum sentence on all counts. See Hall v. Commonwealth, 468 S.W.3d 814, 

824 (Ky. 2015) (stating that with “already overwhelming evidence tending to 

prove a particular fact, any additional evidence introduced to prove the same 

fact necessarily has lower probative worth, regardless of how much persuasive 

force it might otherwise have by itself”). 

In response, the Commonwealth argues that the tote was properly 

admitted, as its probative value was high and any prejudice to Denihan slight. 

Regardless, the Commonwealth asserts that the tote’s admission certainly did 

not rise to the level of palpable error, as the tote aided the jury’s understanding 

of the events surrounding Denihan’s charges and was akin to allowing the 

introduction of, for example, a murder weapon. See Major v. Commonwealth, 

177 S.W.3d 700, 714 (Ky. 2005) (Cooper, J., concurring in part and dissenting 

in part) (opining that background evidence such as charts, photographs, views 

of real estate, murder weapons, is universally offered and admitted as an aid to 

understanding). Although the tote undoubtedly made an impact on both 

Denihan and the jury, that does not render the tote inadmissible. See Webb v. 

Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (prosecution “is permitted to 

prove its case by competent evidence of its own choosing, and . . . the 

defendant may not stipulate away parts of the case that he does not want the 

jury to see[]” (citations omitted)).

Moreover, the Commonwealth maintains that introducing the tote itself 

was important to demonstrate how Denihan tampered with the physical 
8

evidence in this case and abused Hackett’s corpse. See id. (evidence is 

admissible when part of the res gestae of the crime). Further, “[n]ot all 

evidence that is duplicative is therefore cumulative, and evidence should not be 

excluded on this ground merely because it overlaps with other evidence.” 

Daugherty v. Commonwealth, 467 S.W.3d 222, 235 (Ky. 2015) (citation 

omitted). “And some repetition [of the evidence] is no doubt helpful for a jury.” 

Id. 

While the tote may have been prejudicial to Denihan, serving as visual 

proof of his guilt, because this claim of error is unpreserved, the question 

remains whether its introduction substantially affected Denihan’s rights and 

resulted in manifest injustice so as to constitute palpable error. We conclude it 

did not. Considering that Denihan pled guilty to all charges (and did not 

dispute strangling Hackett, tying her up, stuffing her in the tote, and ducttaping it shut), and the jury was presented with photographs and video 

evidence of Hackett’s nude, mutilated body in the tote, we find that 

introduction of the tote itself unlikely led the jury to recommend any harsher 

sentence than it otherwise would have. Accordingly, no palpable error 

resulted.

IV. Conclusion

For the foregoing reasons, we affirm the Warren Circuit Court’s judgment

sentencing Denihan to life in prison.

All sitting. All concur. 
9

COUNSEL FOR APPELLANT:

Kayla Danielle Deatherage

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General