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RENDERED: APRIL 18, 2024

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0312-MR

JAMES GENTRY APPELLANT

ON APPEAL FROM TRIGG CIRCUIT COURT

V. HONORABLE C.A. WOODALL, III, JUDGE 

NO. 19-CR-00014

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

James William Gentry was convicted by a Trigg County Circuit Court 

jury of murder and first-degree robbery. He was sentenced to life 

imprisonment without parole for 25 years and appeals to this Court as a 

matter of right. KY. CONST. § 110(2)(b). Gentry raises six issues on appeal: (1) 

inadmissible hearsay was improperly used to bolster the Commonwealth’s 

case; (2) the Commonwealth did not establish the foundational relevancy of the 

random firearm; (3) inadmissible hearsay deprived Gentry of a fair trial; (4) 

references to an unrelated robbery violated KRE1 404(b); (5) the trial court 

abused its discretion in refusing to have the Commonwealth’s victim 

1 Kentucky Rules of Evidence.
2

representative testify first; and (6) cumulative error. Finding no reversible 

error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 28, 2018, Keith Jodell Hayes’s body was found in a barn 

between a stack of hay bales. Hayes had been shot in the head five times. 

Hayes had last been seen on the morning of the prior day, November 27, when 

multiple witnesses—his mother, Dotty, his girlfriend, Michelle Kamely, and a 

drug business associate, Amber Burr—all testified Hayes had a planned 

meeting with Gentry. Gentry had come earlier that same morning to Dotty’s 

house to arrange the meeting. The three witnesses all testified that Hayes took 

a ring or rings to the meeting to sell to Gentry. Kamely also testified that 

Hayes took a gun with him. Burr further testified that Hayes planned to meet 

her at the local child-support office after obtaining money from Gentry to help 

Burr pay off her child support arrearage. That payoff never occurred. And, 

after Hayes left his mother’s house, Dotty was not able to contact him.

Through investigation, law enforcement determined that Gentry was the 

last person to be seen with Hayes. When law enforcement interviewed Gentry, 

he ultimately admitted to being at the property where Hayes was shot, but

denied being the shooter. Law enforcement recovered Gentry’s jacket seen on 

camera footage the day of the murder. Gentry’s jacket contained the same hay 
3

found at the barn.2 A few months after the murder, law enforcement recovered 

a .38 caliber Taurus revolver from Lake Blythe, less than two miles from 

Gentry’s home. The firearm was reported stolen from a Hopkinsville residence 

located approximately one mile from Gentry’s residence and was believed to be 

the same firearm used to kill Hayes. The KSP report could not conclusively 

determine its bullets matched those recovered by Hayes’s body, although they 

were consistent.

Gentry was interviewed by police five times, providing inconsistent 

statements and multiple versions of the November 27 events.3 Initially, he 

claimed that Hayes and he had planned to do yard work for a “Mrs. Gray” in 

Princeton, Kentucky. Travelling in separate vehicles, Gentry noticed at some 

point that Hayes had “disappeared” and was no longer following Gentry. 

Eventually, Gentry admitted to having had possession of Hayes’s ring. He 

claimed “AJ and Johnny Austin” came to his house and forced him to pawn it 

for them. Law enforcement was able to recover the ring, which Gentry had 

pawned for $900.

After the first interview, law enforcement discovered that Gentry’s uncle 

owned property near the farm where Hayes’s body was found. Upon a 

subsequent interview, Gentry claimed he had been apprehended, tied up and 

2 The hay was an unusual type for the area. An expert, Dr. Timothy Phillips, 

testified that the hay at the barn was teff hay and it matched the hay found in 

Gentry’s jacket.

3 Gentry did not testify at trial. All his statements and observations were 

presented to the jury by law enforcement officers from their interviews of Gentry.
4

placed in the trunk of a car. He then witnessed a drug-related meeting. He 

stated, “heavy hitters out of Arizona” pulled a gun and shot Hayes. These 

individuals then placed him back in the trunk and eventually dropped him off 

at “the Y.” Gentry claimed, however, not to have been anywhere near the barn 

where the body was found.

When officers told Gentry they believed Hayes was killed where his body 

was found, Gentry’s story changed again. In this version, Gentry had arranged 

his uncle’s isolated residence as a meeting place. Hayes called one of two drug 

associates, James Love or another man, variously referred to as Tig, Cortez, 

Tic, or Tight, to inform them of the location. Gentry observed an escalating 

disagreement over drug money. Tig pulled a gun, then Love pulled his gun and 

fired at Hayes. The first shot missed, and then Gentry fled in a vehicle. In his 

rearview mirror, Gentry observed Hayes running away, pursued by Love and 

Tig, in the area of two barns. Gentry steadfastly denied ever going inside the 

barn where Hayes’s body was discovered. Gentry said that while he knew 

Hayes never to leave the house without his .40, he did not see Hayes’s gun on 

this occasion. Later, Tig and Love showed up at Gentry’s house and forced him 

to take and pawn Hayes’s rings. They did so to ensure Gentry’s silence about 

the events. Gentry later changed his story about the rings, saying he had 

pawned one he took from Hayes’s vehicle.

Gentry admitted that Hayes and he had discussed planning a robbery. 

This was to benefit Hayes since he needed quick money. The tentative plan 

was to rob a bar in Tennessee, although this robbery never occurred.
5

A Trigg County Grand Jury indicted Gentry of one count of murder –

complicity, one count of first-degree robbery – complicity, and one count of 

possession of a handgun by a convicted felon – complicity. The possession of a 

handgun by a convicted felon charge was severed from the other charges before 

trial. 

At trial, the Commonwealth’s theory was Gentry lured Hayes to the barn 

to rob and kill him. Gentry presented an alternate perpetrator (“aaltperp”) 

defense at trial. His claim was that he did not kill Hayes but witnessed Love or

Tig kill Hayes during the drug deal. In support of his two-shooter theory, 

Gentry argued that no blood or gunshot residue existed on Gentry’s jacket, 

Hayes had owed money to his drug suppliers, the two shooters had left 

cigarette butts at the barn, and Gentry did not drop off Hayes’s truck at a 

church parking lot where it was later found.

The trial was held over four days in July 2021. On the scheduled fourth 

day of trial, pre-trial services reported that Gentry had disconnected his ankle 

monitor, and his whereabouts were unknown. Over Gentry’s counsel’s 

objection, the trial court ruled that Gentry had voluntarily absented himself 

from the trial and ordered the proceedings to continue. Following the 

conclusion of the trial, the jury returned a guilty verdict on murder and firstdegree robbery. Following the jury’s recommendation, the trial court sentenced 

Gentry to life imprisonment without parole for 25 years. Gentry now appeals 

his conviction to this Court as a matter of right.
6

II. STANDARD OF REVIEW

The issues Gentry raises in this appeal all involve evidentiary issues. We 

review the trial court’s evidentiary rulings under an abuse of discretion 

standard. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 

2000). “The test for abuse of discretion is 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). 

III. ANALYSIS

Gentry argues several trial errors: (1) inadmissible hearsay was 

improperly used to bolster the Commonwealth’s case; (2) the Commonwealth 

did not establish the foundational relevancy of the random firearm; (3) 

inadmissible hearsay deprived Gentry of a fair trial; (4) references to an 

unrelated robbery violated KRE 404(b); (5) the trial court abused its discretion 

in refusing to have the Commonwealth’s victim representative testify first; and 

(6) cumulative error.

Gentry’s first four issues are unpreserved. Because the issues are 

unpreserved, Gentry requests we review the issues for palpable error. RCr4

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.’” Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013). “Even 

then, relief is appropriate only ‘upon a determination that manifest injustice 

4 Kentucky Rules of Criminal Procedure. 
7

resulted from the error.’” Id. (quoting RCr 10.26). “For an error to rise to the 

level of palpable, ‘it must be easily perceptible, plain, obvious and readily 

noticeable.’” Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky. 

2013) (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)). “A 

palpable error must be so grave that, if uncorrected, it would seriously affect 

the fairness of the proceedings.” James v. Commonwealth, 681 S.W.3d 60, 69 

(Ky. 2023) (quoting Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021)). 

A. No palpable error occurred during Det. Hamby’s testimony. 

Gentry asserts multiple issues arose during Det. Hamby’s testimony 

concerning the firearm, ballistics evidence, DNA evidence, and gunshot 

residue. We address these in turn.

1. The firearm and ballistics evidence.

Gentry first argues palpable error occurred when Det. Hamby testified to 

the discovery, the collection, and the analysis of the firearm found in Lake 

Blythe. Det. Hamby testified that in February 2019 he was contacted by the 

Christian County Sheriff’s Department and was advised a fisherman had found 

a Taurus .38 revolver in Lake Blythe, north of Hopkinsville. Upon recovery of 

the firearm, Det. Hamby saw that the serial numbers had been scratched off, 

but through an acid technique he was able to recover the serial numbers. 

Based off the serial numbers, Det. Hamby discovered the firearm was stolen 

and the owner lived in Hopkinsville, less than two miles from Gentry. Det. 

Hamby sent the firearm to the ballistics lab to determine whether the firearm 

was functional and to compare its bullets to those causing Hayes’s injuries. 
8

Det. Hamby testified that the ballistics examination results could not conclude 

whether the firearm’s bullets matched those causing Hayes’s injuries. 

However, he testified that the bullets from the .38 Taurus revolver were 

consistent with those recovered from Hayes’s body.

 Gentry argues that Det. Hamby’s testimony about the ballistics 

examination violated the Confrontation Clause. “[I]f an out-of-court statement 

is testimonial in nature, it may not be introduced against the accused at trial 

unless the witness who made the statement is unavailable and the accused has 

had a prior opportunity to confront the witness.” Bullcoming v. New Mexico, 

564 U.S. 647, 657 (2011) (citing Crawford v. Washington, 541 U.S. 36, 59 

(2004)). Previously, this Court has held that the Confrontation Clause was 

violated when a “KSP lab report and its conclusions were admitted at trial in 

the absence of [the lab technician].” Peters v. Commonwealth, 345 S.W.3d 838, 

841-43 (Ky. 2011). Following Crawford and Melendez-Diaz v. Massachusetts, 

557 U.S. 305 (2009), we determined that, “[b]ecause the report is a testimonial 

statement, neither it, nor its contents, could be admitted at trial in the absence 

of the declarant[.]” Peters, 345 S.W.3d at 843. In this case, no evidence was 

presented at trial that the analyst for the ballistics examination was 

unavailable or that Gentry had the opportunity to cross examine the analyst. 

Gentry, thus, is correct that Det. Hamby’s testimony on this issue was 

improper. 

An error under Crawford, however, is subject to a harmless error 

analysis. Staples v. Commonwealth, 454 S.W.3d 803, 826 (Ky. 2014). 
9

“Harmless error analysis applied to a constitutional error . . . involves 

considering the improper evidence in the context of the entire trial and asking 

whether there is a ‘reasonable possibility that the evidence complained of might 

have contributed to the conviction.’” Id. at 826-27 (quoting Talbott v. 

Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998)). However, when the error is 

unpreserved, “[a] party claiming palpable error must show a probability of a 

different result or error so fundamental as to threaten a defendant's 

entitlement to due process of law.” Peters, 345 S.W.3d at 843 (citing Martin v. 

Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). In Peters, we held that a similar 

error did not rise to the level of palpable error based on all the other evidence 

admitted. Id. at 843.

During the four-day trial, the Commonwealth presented considerable 

evidence that Gentry murdered and robbed Hayes: Gentry had arranged a 

meeting with Hayes at a location known to Gentry; Gentry was the last person 

known to have seen Hayes; Hayes took a gun to the meeting and was killed by 

a gun similar in caliber to his own gun;5 Gentry’s jacket contained an unusual 

type of hay that was stored in the barn where Hayes’s body was found; and

Gentry had pawned Hayes’s ring. In addition, Gentry gave multiple 

inconsistent statements to police, including failure to tell about the “drug deal 

5 A more complete summary of this evidence is that Kamely testified that Hayes 

showed her his firearm on his person before he went to meet Gentry. Burr testified 

that Hayes’s firearm was stolen. The firearm recovered from the lake was a stolen 

firearm. Law enforcement did not find Hayes’s firearm anywhere around the barn. 

Burr testified that she was “fairly confident” that the firearm recovered from the lake 

was Hayes’s firearm.
10

gone bad” in his first interview. The Commonwealth also disproved Gentry’s 

two-shooter theory by excluding Love, one of the purported shooters. Love 

consented to DNA testing, law enforcement searched his truck, and, most 

significantly, performed an analysis of Love’s cell phone which revealed Love 

was not in Trigg County at the time of the murder. Gentry had stated that 

Love and Tig were both smoking during the drug deal and had left cigarette 

butts at the scene. Law enforcement, however, only found one cigarette butt. 

Finally, Gentry claimed both Love and Tig had fired weapons at Hayes. Law 

enforcement only recovered six bullets at the scene: five recovered from Hayes’s 

head and one partial bullet in a wooden rafter. This evidence was consistent 

with Hayes having been shot with a single revolver.

Considering all the evidence presented by the Commonwealth, Det. 

Hamby’s testimony about the recovery of the firearm and ballistics examination 

showed no probability of a different result. No palpable error occurred from the 

Confrontation Clause violation.

2. The DNA evidence.

Det. Hamby testified that police collected one cigarette butt from the 

crime scene. When sent for testing, only Hayes’s DNA was discovered. No one 

from the lab testified to the DNA results. Gentry argues palpable error 

occurred when Det. Hamby testified to the DNA results with respect to this 

cigarette butt.

As with the ballistics examination, allowing Det. Hamby to testify about 

the DNA test results also violated the Confrontation Clause. See Peters, 345 
11

S.W.3d at 843 (admitting conclusions from lab report without the lab 

technician violated the Confrontation Clause). No evidence was presented at 

trial that the analyst for the DNA test was unavailable or that Gentry had the 

opportunity to cross examine the analyst. 

However, applying the same palpable error analysis above to the DNA 

test, this error still does not rise to a palpable error. Gentry argued that Love 

and Tig were the ones who left that cigarette butt. Det. Hamby testified that he 

obtained a DNA sample from Love, ran an analysis of Love’s cell phone, 

searched his truck, and concluded that no evidence placed Love at the scene of 

Hayes’s murder. No other evidence presented at trial connected either Tig or 

Love to the scene. Gentry cannot show a probability of a different result based 

on all evidence presented by the Commonwealth. No palpable error occurred. 

3. The gunshot residue testing. 

As previously noted, Gentry’s jacket observed on security camera footage 

had been seized by law enforcement pursuant to a search warrant. Det. 

Hamby testified that he did not submit the jacket for gunshot residue testing, 

noting that gunshot residue testing is fickle and the state laboratory had 

indicated in the past that it would not perform gunshot residue tests under 

similar circumstances. No one from the lab testified to the refusal to do 

gunshot residue testing of Gentry’s jacket. No report was generated for testing 

because the lab never tested Gentry’s jacket. Gentry argues this constitutes 

another Confrontation Clause violation and palpable error, because no one 

from the lab was available to be cross-examined and Det. Hamby provided the 
12

testimony as to the efficacy of the gunshot residue testing. The Commonwealth 

argues no palpable error occurred because Hamby’s testimony about the 

gunshot residue testing was not hearsay. We agree with the Commonwealth.

The statement was not hearsay because the statement was only offered 

to demonstrate why the officer took the action he did. Chestnut v. 

Commonwealth, 250 S.W.3d 288, 294 (Ky. 2008). Gentry was not denied his 

right to confront witnesses. Det. Hamby testified based on his prior experience 

with submitting gunshot residue testing to the lab. He testified that gunshot 

residue testing was fickle because it needs to be close in time to the crime and 

usually from the suspect’s hands, not articles of clothing. Gentry’s jacket was 

recovered three days after Hayes’s body was found. Det. Hamby determined 

based on his prior experience, gunshot residue testing would not be able to 

pinpoint when, if any, residue got on the jacket. Det. Hamby’s testimony about 

the gunshot residue testing was not hearsay, did not violate the Confrontation 

Clause, and was not palpable error. 

B. Gentry waived his claim as to admission of the firearm.

Gentry argues palpable error occurred because the Commonwealth did 

not lay a proper foundation for the firearm found in the lake three months after 

the murder. The Commonwealth argues that Gentry waived any claim of error 

in the admission of the firearm by not objecting to its admission at trial. The 

Commonwealth moved for the firearm to be admitted to the jury and the 

defense stated it had “no objection.” 
13

When “a party not only forfeits an error by failing to object to the 

admission of evidence, but specifically waives any objection, the party cannot 

complain on appeal that the court erroneously admitted that evidence.” 

Tackett v. Commonwealth, 445 S.W.3d 20, 29 (Ky. 2014). In Tackett, the 

defense explicitly had no objection to the admission of a doctor’s report, which 

stated that the defendant was the perpetrator. Id. This Court held that the 

defendant “explicitly waived any objection to the admission of that evidence, 

whether by way of the report or through [the doctor’s] testimony about the 

report’s contents.” Id.

Gentry’s explicit acquiescence to the admission of the firearm rendered 

the claim “not only unpreserved,” but “specifically waived”. Id. Accordingly, to 

the extent admission of the firearm was error, Gentry waived the error, and we 

need not address the issue further.

C. Admission of additional hearsay evidence was not palpable error.

Gentry argues he was denied a fair trial because the trial court allowed 

additional inadmissible hearsay statements that devastated his two-shooter 

defense. Gentry points us to two statements: (1) Det. Hamby testified that 

someone told him a rumor that Troy Clark was driving Hayes’s truck on 

November 27, 2018; and (2) Officer Leek testified that he overheard Hayes’s 

brother, Mike Hayes, on speakerphone ask Gentry about his planned robbery 

with Hayes. 

KRE 801 defines hearsay as “a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the 
14

truth of the matter asserted.” KRE 801(c). Hearsay is generally inadmissible 

unless it meets an exception. KRE 802. Both statements at issue were made 

by a declarant outside of trial. Gentry argues that both statements were 

offered to prove the truth of the matter asserted. Neither hearsay statement, 

however, resulted in palpable error.

1. Rumor about Troy Clark Driving Hayes’s Truck

Gentry argues that one of the unanswered questions at trial was how 

Hayes’s truck got from the crime scene to the church parking lot where it was 

found. Det. Hamby was questioned about the fact that his investigation 

uncovered an allegation that a man named Troy Clark was seen driving Hayes’s 

truck on the day of the murder. Burr had testified that Clark was one of 

Hayes’s drug suppliers. Gentry complains that Det. Hamby stated, “There was 

at one point a statement made about a man named Troy Clark driving the 

victim’s truck. We were able to track down the source of that statement and he 

told us he never said that, so it was just a rumor that had gotten started.” 

Gentry’s argument is that this hearsay statement was introduced without 

testimony from the source of the “rumor” as proof that Clark was not driving 

Hayes’s truck.

At trial, this testimony was presented on cross-examination when Gentry 

asked Det. Hamby the question that gave rise to the now objectionable 

response: “People also . . . told you they saw Troy Clark driving the . . . victim’s 

truck, correct?” Gentry thus waived this error because his defense counsel 

invited Det. Hamby’s answer. This Court has “long held, ‘[o]ne who asks 
15

questions which call for an answer has waived any objection to the answer if it

is responsive.’” Sheets v. Commonwealth, 495 S.W.3d 654, 669 (Ky. 2016) 

(quoting Estep v. Commonwealth, 663 S.W.2d 213, 216 (Ky. 1983)). Det. 

Hamby’s answer was responsive to Gentry’s question about Troy Clark driving 

Hayes’s truck. Gentry invited the error and thus waived any objection. 

2. Officer Leek’s overheard conversation 

Officer Leek’s testimony about what Mike Hayes said on a phone call to 

Gentry that Officer Leek overheard by speaker phone was hearsay. His 

testimony was an out of court statement offered to prove the truth of the 

matter asserted that Gentry and Hayes had planned a robbery together and 

had planned to meet up to split the robbery proceeds. Mike Hayes had testified 

at trial on the day prior to Officer Leek and did not mention that Gentry had 

planned a robbery with Hayes. Although Officer Leek’s testimony was hearsay, 

its admission does not rise to palpable error because Gentry admitted in an 

interview with law enforcement that he planned a robbery with Hayes, making 

the hearsay evidence duplicative and highly unlikely to have altered the 

outcome of the trial. No manifest injustice occurred by Officer Leek testifying 

to Mike Hayes’s statement over speaker phone. 

D. The trial court properly admitted the robbery evidence.

Gentry argues the trial court erred in allowing KRE 404(b) evidence of 

Gentry committing another uncharged robbery, and this evidence was thus 

unduly prejudicial for the jury to hear. We disagree. Because the uncharged 
16

robbery was part of the res gestae of how Gentry lured Hayes to the barn, it 

was properly admitted under KRE 404(b)(2).

Kamely testified that she overheard Gentry tell Hayes that “it’s already 

done.” The Commonwealth later argued that Gentry’s statement referred to the

uncharged robbery. Burr testified that Gentry was supposed to have $20,000 

from a robbery and that Hayes told her he was going to meet with Gentry to get 

a share of the proceeds. Burr also testified that Hayes had a ring and a firearm 

with him that he was going to trade to Gentry in exchange for a bigger share of 

the robbery proceeds. Det. Hamby testified that during Gentry’s last interview, 

Gentry admitted to planning a robbery of a liquor store. When Det. Hamby 

followed up on whether this robbery ever occurred, he found no record of it. In 

the Commonwealth’s closing, it argued that the robbery Gentry and Hayes 

planned together was Gentry’s opportunity to lure Hayes to the barn to kill and 

rob him of his possessions. 

KRE 404(b) provides: 

(b) Other crimes, wrongs, or acts. Evidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a person 

in order to show action in conformity therewith. It may, however, 

be admissible:

(1) If offered for some other purpose, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence 

essential to the case that separation of the two (2) could not 

be accomplished without serious adverse effect on the 

offering party.
17

The Commonwealth argues that the robbery evidence was admissible 

alternatively under either subsection (1) or (2). We agree with the 

Commonwealth, but believe its stronger argument is under KRE 404(b)(2) in 

that the evidence of robbery was inextricably intertwined with other evidence 

essential and that separation of the two could not be accomplished. In Major v. 

Commonwealth, 177 S.W.3d 700, 708 (Ky. 2005) (quoting Norton v. 

Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994)), we noted that “KRE 

404(b)(2) is ‘intended to be flexible enough to permit the prosecution to present 

a complete, un-fragmented, un-artificial picture of the crime committed by the 

defendant, including necessary context, background and perspective.’” 

Further, the rule permits “the Commonwealth . . . to present a complete and 

unfragmented picture of the circumstances surrounding how the crime was 

discovered.” Clark v. Commonwealth, 267 S.W.3d 668, 681 (Ky. 2008).

As previously noted, the Commonwealth’s theory of the case was that 

Gentry had lured Hayes to the barn under the pretense of either planning a 

future robbery for the benefit of Hayes, or of splitting money which were 

proceeds from an earlier robbery. The testimony as to events occurring and 

statements made on November 27 leading up to Hayes’s murder were part and 

parcel as to why Hayes went to meet Gentry that day. That Gentry told Hayes 

the uncharged robbery was completed in order to get him to come to the barn 

was offered by the Commonwealth to prove that Gentry had the motive to rob 

Hayes at the barn. Gentry also told law enforcement that Hayes and he were 

planning a Tennessee robbery for Hayes’s benefit. Det. Hamby testified that no 
18

record of the robbery of the liquor store existed. However, multiple witnesses 

confirmed that Gentry and Hayes had planned to commit a robbery. The 

evidence of robbery is part of the res gestae of the Commonwealth’s theory that 

Gentry lured Hayes to the barn on a false premise in order to shoot and rob 

him. See Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (allowing 

evidence of other crimes where “the ‘uncharged offense is “so linked together in 

point of time and circumstances with the crime charged that one cannot be 

fully shown without proving the other . . . .” [and is thus] part of the res gestae 

of the crime charged[]’” (quoting Norton, 890 S.W.2d at 638)).

E. The trial court did not err in allowing Dotty Hayes to be the 

Commonwealth’s third witness. 

Gentry argues the trial court abused its discretion in refusing to have the 

Commonwealth call Dotty Hayes as its first witness. He argues that allowing 

Dotty to be in the courtroom after KRE 615 was invoked was an error. Dotty 

was the victim’s mother and her testimony was unrelated to the previous two 

witnesses. Gentry preserved this issue by objection and requests this Court 

review it for abuse of discretion. See McAbee v. Chapman, 504 S.W.3d 18, 31 

(Ky. 2016) (applying abuse of discretion to the trial court’s failure to sequester 

expert witnesses). 

Gentry’s counsel invoked KRE 615 before the Commonwealth’s first 

witness. This Court has held that “KRE 615 requires the trial court to exclude 

trial witnesses, so that they cannot hear the testimony of other witnesses.” 

McAbee, 504 S.W.3d at 24. “The purpose of the rule is to ensure that 
19

witnesses do not alter their testimony based on the testimony of other 

witnesses.” Cavanaugh v. Commonwealth, 671 S.W.3d 17, 20 (Ky. 2022) (citing 

Hatfield v. Commonwealth, 250 S.W.3d 590, 594 (Ky. 2008)). However, the rule 

has exceptions. KRE 615 states: 

This rule does not authorize exclusion of:

(1) A party who is a natural person;

(2) An officer or employee of a party which is not a natural 

person designated as its representative by its attorney; or

(3) A person whose presence is shown by a party to be 

essential to the presentation of the party's cause. 

The Commonwealth argued that Det. Hamby met an exception to KRE 

615 and it invoked Dotty’s right to remain in the courtroom under Marsy’s Law. 

KY. CONST. § 26A. This Court held that when dealing with KRE 615 and 

Marsy’s law “the best course of action is for trial courts to have the victim 

testify first so that no question of improper influence on their testimony 

occurs.” Cavanaugh, 671 S.W.3d at 21 n.3.6 Nevertheless, KRE 611 grants 

the court reasonable control over the mode and order of interrogating witnesses 

and presenting evidence and Cavanaugh did not set forth a requirement that 

victims testify first in all circumstances. Id. (finding no error in allowing victim 

to testify after hearing other witness’s testimony where she “was the only 

witness who testified to the events leading up to the assault and the assault 

itself[]”). Here, the trial court had Dotty, the victim’s mother, testify third 

instead of first. 

6 The trial in this case was held prior to rendition of Cavanaugh’s addressing of 

best practices.
20

The Commonwealth called Mike Davis as its first witness, Deputy Randy 

Clark as its second witness, and then Dotty. Davis testified that he discovered 

Hayes’s body on November 28, 2018, and that he stored hay in barns around 

Trigg County. Deputy Clark testified that he responded to the call about 

Hayes’s body. 

Dotty’s testimony was unrelated to that of the first two witnesses 

because she discussed events that occurred before the discovery of Hayes’s 

body. Dotty testified that Gentry came to her residence several times on 

November 27, 2018, and that Hayes left to meet up with Gentry. Dotty also 

testified to Hayes’s relationship with Burr, his possession of the ring, and his 

financial status. Like Cavanaugh, no prejudice was caused by the trial court 

permitting Dotty to remain in the courtroom for the first two witnesses because 

her testimony could not have been altered by the testimony of Mike Davis and 

Deputy Clark. Id. at 21. The purpose of KRE 615 as it related to Gentry’s 

constitutional rights was not frustrated by Dotty testifying as the third witness 

in this case for the same reason. The court did not abuse its discretion in 

allowing Dotty to be the Commonwealth’s third witness. 

F. Cumulative error did not occur. 

A criminal defendant “is guaranteed a fair trial[,]” but “[t]his does not 

mean, however, a perfect trial, free of any and all errors.” McDonald v. 

Commonwealth, 554 S.W.2d 84, 86 (Ky. 1977). Under the cumulative error 

doctrine, “multiple errors, although harmless individually, may be deemed 

reversible if their cumulative effect is to render the trial fundamentally unfair.” 
21

Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). “Where, as in this 

case, however, none of the errors individually raised any real question of 

prejudice, we have declined to hold that the absence of prejudice plus the 

absence of prejudice somehow adds up to prejudice.” Id. (citing Furnish v. 

Commonwealth, 95 S.W.3d 34, 53 (Ky. 2002)). Here, three errors occurred 

during trial: (1) Det. Hamby’s testimony about the recovery of the firearm and 

ballistics examination; (2) Det. Hamby’s testimony about the DNA evidence; 

and (3) Officer Leek’s testimony about Mike Hayes’s phone call with Gentry. 

However, considering all the evidence produced at trial, those errors, as noted, 

did not prejudice Gentry. The limited errors committed by the trial court did 

not render the trial fundamentally unfair. 

IV. CONCLUSION

For the foregoing reasons, the Trigg Circuit Court’s judgment is affirmed. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Shannon Renee Dupree

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General