RENDERED: NOVEMBER 20, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1129-MR

TIRRELL BARBOUR APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT

v. HONORABLE KEN M. HOWARD, JUDGE

ACTION NO. 18-CR-01167

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Tirrell Barbour has appealed as a matter of right from the 

judgment of the Hardin Circuit Court convicting him of first-degree fleeing or 

evading police, operating a motor vehicle under the influence, speeding, and being 

a first-degree persistent felony offender. The court sentenced him to 15 years’

imprisonment. Finding no error, we affirm.
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The Hardin County grand jury returned a multiple count indictment 

against Barbour related to an attempted traffic stop on September 28, 2018, by 

Kentucky State Trooper Jeremy Duvall while he was patrolling on southbound 

Interstate 65. Barbour refused to pull over and continued to drive at an excessive 

speed as Trooper Duvall pursued him on the interstate, which was an active 

construction zone. As Barbour attempted to exit the interstate on an exit ramp, he 

flipped his automobile, hit a light pole and construction signs, crawled out of his 

car, ran across the ramp, jumped over a fence, and ran away from the officers. The 

officers apprehended him in a muddy field. As a result, the grand jury charged him 

with first-degree fleeing or evading police (while operating a motor vehicle); firstdegree wanton endangerment, police officer; resisting arrest; operating a motor 

vehicle under the influence of intoxicants, second offense, aggravated (DUI); 

speeding, 26 mph over; first-degree wanton endangerment; first- and third-degree 

criminal mischief; failure to signal; second-degree fleeing or evading police (as a 

pedestrian); and being a first-degree persistent felony offender (PFO I). Barbour 

entered a plea of not guilty at his arraignment, and a jury trial was scheduled. Prior 

to trial, and on the Commonwealth’s motion, the court dismissed counts 2, 3, 6, 9, 

and 10 of the indictment related to wanton endangerment, resisting arrest, firstdegree criminal mischief, and the second-degree fleeing or evading police charge 

(as a pedestrian). 
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A three-day jury trial commenced on May 29, 2019. Following the 

close of evidence, the trial court instructed the jury on five counts: first- and 

second-degree fleeing or evading police, DUI, speeding, third-degree criminal 

mischief, and failure to signal. The jury ultimately returned guilty verdicts on the 

charges of first-degree fleeing or evading police, DUI, and speeding. The jury 

found Barbour not guilty of criminal mischief and failure to signal. After the 

penalty phase, the jury recommended a five-year sentence for the fleeing or 

evading police conviction, enhanced to 15 years for his status offense of being a 

PFO I. 

Following the trial, Barbour filed a motion pursuant to Kentucky 

Rules of Criminal Procedure (RCr) 10.02 and 10.24 requesting the trial court to

enter a verdict of not guilty or, in the alternative, to grant him a new trial. He 

argued that there was insufficient evidence to support his convictions and raised 

issues related to the introduction of video evidence of the vehicle and foot pursuit, 

hyperbole used by the Commonwealth in describing the applicable portion of I-65 

as one of the busiest in the country, and the introduction of photographs of the 

scene where Barbour’s vehicle came to a stop. 

The trial court ultimately entered a judgment and sentence on July 19, 

2019, finding Barbour guilty of the offenses as found by the jury and sentencing 

him to an enhanced 15-year sentence for the first-degree fleeing or evading police 
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conviction and a $100.00 fine for the speeding conviction. By a separate order, the 

court entered a sentence for the DUI conviction, which was a fine and four days of 

imprisonment with a four-day credit. Barbour was ordered to complete a treatment 

program and attend a DUI victim impact panel. This appeal now follows.

On appeal, Barbour raises three arguments. These address his 

representation by appointed counsel, testimony from Trooper Duvall regarding 

blood testing, and jury instructions. We shall consider each issue in turn.

For his first issue, Barbour seeks palpable error review pursuant to

RCr 10.26, to the extent it was not preserved, related to whether the trial court 

should have held a hearing as to whether his public defender should remain his 

trial counsel. The Supreme Court of Kentucky defined a review for palpable error 

in Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003), as follows: 

A palpable error is one of that [sic] “affects the 

substantial rights of a party” and will result in “manifest 

injustice” if not considered by the court, and “[w]hat it 

really boils down to is that if upon a consideration of the 

whole case this court does not believe there is a 

substantial possibility that the result would have been any 

different, the irregularity will be held nonprejudicial.”

(Footnotes omitted); see also Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 

2009) (“[A]n unpreserved error that is both palpable and prejudicial, still does not 

justify relief unless the reviewing court further determines that it has resulted in a 

manifest injustice; in other words, unless the error so seriously affected the 
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fairness, integrity, or public reputation of the proceeding as to be ‘shocking or 

jurisprudentially intolerable.’”). 

This issue arose as a result of an exchange between the trial court and 

Barbour at a pretrial conference on May 14, 2019, shortly before the trial in this 

action. Barbour’s appointed counsel informed the court that the Commonwealth 

had made a guilty plea offer, which counsel had advised him to accept. However, 

Barbour chose not to follow this advice. The following discussion then occurred:

Court: Mr. Barbour, you understand that it’s your 

attorney’s responsibility to, obviously, convey any offer 

that’s made, to give you his best advice, but then it’s 

ultimately your final decision, and you understand that.

Barbour: Yes, sir, I understand, but I honestly don’t feel 

like my attorney’s been helping me, I feel like he’s not 

really trying.

Court: I don’t want you to talk about what you all have 

discussed, that’s between you and him.

Barbour: Okay.

Court: I just want to make sure you understand that any 

final plea decision is yours.

Barbour: Yes, sir.

Court: And so, we will go to trial next Wednesday.

Counsel: Yes, sir.

Court: Thank you.
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Barbour then asked his counsel about medical records he had been 

trying to give to the trial court for six months related to a recommended medical 

treatment he had been seeking but that the jail had refused to approve. Barbour 

specifically sought a reduction of his bond so that he could go to the hospital and 

have the procedure performed. The court did not reduce Barbour’s bond and 

indicated that it was not a medical professional and could not tell other medical 

professionals what to do. The discussion regarding Barbour’s experience with the 

jail staff and his pending lawsuit against the jail continued, which prompted the 

court to remind Barbour that it was presiding over his criminal action. Barbour 

then began to leave the courtroom with the bailiffs. As he was walking, Barbour 

stated:

Your honor, can you put it on the record, I don’t want 

him [his appointed counsel] on my case. I don’t want 

him on my case. He’s going to get me killed. He ain’t 

trying to help me. He’s buddies with the prosecutor. 

Buddy-buddy.

The issue was not raised again, and the trial took place with the same appointed 

counsel representing Barbour.

Based upon this conversation at the pretrial conference, Barbour now 

argues that he was entitled to a hearing to determine whether he had shown 

sufficient cause for a substitute counsel to be appointed. We disagree that Barbour 

has shown palpable error that would support reversal on this issue.
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In Deno v. Commonwealth, 177 S.W.3d 753, 759 (Ky. 2005), the 

Supreme Court of Kentucky discussed an indigent defendant’s right to substitute 

counsel:

An indigent defendant is not entitled to the 

appointment of a particular attorney, and a defendant 

who has been appointed counsel is not entitled to have 

that counsel substituted unless adequate reasons are 

given. When a defendant requests substitution of counsel 

during trial, “the defendant must show good cause, such 

as a conflict of interest, a complete breakdown of 

communication or an irreconcilable conflict which leads 

to an apparently unjust verdict.” Good cause has been 

described as: (1) a “complete breakdown of 

communications between counsel and defendant;” (2) a 

“conflict of interest;” and (3) that the “legitimate interests 

of the defendant are being prejudiced.” Whether good 

cause exists for substitute counsel to be appointed is 

within the sound discretion of the trial court. 

(Footnotes omitted.) “[M]ere dissatisfaction with appointed counsel’s performance 

is insufficient to support a motion to support his removal.” Stinnett v. 

Commonwealth, 364 S.W.3d 70, 81 (Ky. 2011). 

While Barbour contends that Deno contains an implicit hearing 

requirement on a motion to substitute appointed counsel by citing to an 

unpublished opinion, the Commonwealth counters that a formal hearing is not 

required in the absence of good cause for a defendant’s dissatisfaction. 

The trial court has an affirmative duty to inquire 

into the source and nature of a criminal defendant’s 

expressed dissatisfaction with counsel. Benitez v. United 

States, 521 F.3d 625, 634 (6th Cir. 2008). However, a 
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searching inquiry is not required unless the defendant 

raises some “substantial basis for dissatisfaction.” 

Monroe v. United States, 389 A.2d 811, 820 (D.C. App. 

1978). The nature and scope of the inquiry is not rigid. 

Instead, the necessary scope depends on the 

circumstances of each case. Id. at 821. Whatever the 

inquiry requires, though, it must be sufficient to elicit 

whether counsel has both the ability and the preparedness 

to effectively assist the defendant. Id.

Padgett v. Commonwealth, 312 S.W.3d 336, 343 (Ky. 2010). Here, we agree with 

the Commonwealth that Barbour’s statements at the end of the pretrial proceeding 

did not provide a substantial basis for replacing his appointed counsel shortly 

before trial was scheduled to begin or for even holding a hearing to explore this 

request. We find no error, palpable or otherwise, to justify reversal on this issue.

Next, Barbour contends that the admission of testimony that he had 

declined an independent blood test constituted palpable error. Trooper Duvall 

provided this information during his examination after he stated that Barbour had 

consented to a blood draw at the hospital and Duvall had read the implied consent 

form to Barbour. Barbour argues that this testimony resulted in an unfair inference 

that he was guilty of intoxication and constituted a violation of his Fifth 

Amendment right against self-incrimination, citing Griffin v. California, 380 U.S. 

609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), as well as his Fourth Amendment 

rights against unreasonable searches. We disagree that any manifest injustice 

occurred to support reversal.
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Kentucky Revised Statutes (KRS) 189A.103 requires an officer to 

inform a person who has undergone a test at the officer’s request that he or she 

may request an independent test:

The following provisions shall apply to any person who 

operates or is in physical control of a motor vehicle or a 

vehicle that is not a motor vehicle in this 

Commonwealth:

(1) He or she has given his or her consent to one (1) or 

more tests of his or her blood, breath, and urine, or 

combination thereof, for the purpose of determining 

alcohol concentration or presence of a substance which 

may impair one’s driving ability, if an officer has 

reasonable grounds to believe that a violation of KRS 

189A.010(1) or 189.520(1) has occurred;

. . .

(7) After the person has submitted to all alcohol 

concentration tests and substance tests requested by the 

officer, the person tested shall be permitted to have a 

person listed in subsection (6) of this section of his or her 

own choosing administer a test or tests in addition to any 

tests administered at the direction of the peace officer. 

Tests conducted under this section shall be conducted 

within a reasonable length of time. Provided, however, 

the nonavailability of the person chosen to administer a 

test or tests in addition to those administered at the 

direction of the peace officer within a reasonable time 

shall not be grounds for rendering inadmissible as 

evidence the results of the test or tests administered at the 

direction of the peace officer.
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KRS 189A.105 addresses, in part, the option to request an independent test, and 

subsection (2)(a)3. provides:1

At the time a breath, blood, or urine test is requested, the 

person shall be informed . . . [t]hat if the person first 

submits to the requested alcohol and substance tests, the 

person has the right to have a test or tests of his blood 

performed by a person of his choosing described in KRS 

189A.103 within a reasonable time of his arrest at the 

expense of the person arrested. 

The same statute requires the officer to inform the arrested person a second time of 

his or her right to have an independent blood test:2

(4) Immediately following the administration of the final 

test requested by the officer, the person shall again be 

informed of his right to have a test or tests of his blood 

performed by a person of his choosing described in KRS 

189A.103 within a reasonable time of his arrest at the 

expense of the person arrested. He shall then be asked 

“Do you want such a test?” The officer shall make 

reasonable efforts to provide transportation to the tests.

We agree with the Commonwealth that Barbour’s constitutional rights 

were not impacted by the testimony that he had declined an independent blood test. 

“Exclusion of evidence for violating the provisions of the informed consent statute 

is not required. It has been held in Kentucky and elsewhere that in the absence of 

an explicit statutory directive, evidence should not be excluded for the violation of 

 

1 We are utilizing the version of this subsection of KRS 189A.105 in effect between June 24, 

2015, and June 30, 2020.

2

See footnote 1.
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provisions of a statute where no constitutional right is involved.” Beach v. 

Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996). There was no such statutory 

directive here that evidence should be excluded for the violation of this statute. 

Furthermore, “the Fifth Amendment is not implicated here. The Fifth Amendment 

protection applies to evidence of a testimonial nature. It does not apply to physical 

evidence such as bodily fluids, breath, and hair.” Deno, 177 S.W.3d at 760 

(footnote omitted). Finally, the Fourth Amendment is not implicated because 

Barbour was not coerced into taking an independent blood test or into declining the 

offer of one. We find no error on this issue, palpable or otherwise.

For his final argument, Barbour contends that the jury instructions for 

first-degree fleeing or evading police and DUI constituted a violation of double 

jeopardy under both statutory and constitutional grounds. Again, this issue was not 

preserved for review, although we agree with the Commonwealth that Barbour did 

not waive his constitutional double jeopardy claim:

[A]lthough Appellant failed to raise this issue at trial, 

“the constitutional protection against double jeopardy is 

not waived by failing to object at the trial level.” Walden 

v. Commonwealth, 805 S.W.2d 102, 105 (Ky. 1991) 

(overruled on other grounds by Commonwealth v. Burge, 

947 S.W.2d 805 (Ky. 1996)). Accordingly, Appellant’s 

constitutional double jeopardy argument is properly 

raised for our review. It is important to note that this rule 

is premised upon the constitutional stature of the right, 

and as further discussed below, we ultimately resolve this 

issue upon statutory grounds. Nevertheless, review of 

the unpreserved claim of a violation of statutory double 
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jeopardy is proper upon application of the palpable error 

rule, see RCr 10.26. Cardine v. Commonwealth, 283 

S.W.3d 641 (Ky. 2009) (“Double jeopardy violation 

resulting when defendant was retried following trial 

court’s sua sponte declaration of mistrial on less than 

manifest necessity constituted palpable error.”).

Kiper v. Commonwealth, 399 S.W.3d 736, 740-41 (Ky. 2012) (footnote omitted). 

In Adams v. Commonwealth, 564 S.W.3d 584, 591 (Ky. App. 2018), 

this Court explained the protections against double jeopardy:

The Fifth Amendment to the United States 

Constitution guarantees that no person shall “for the 

same offense, be twice put in jeopardy of life or limb[.]” 

Section 13 of the Kentucky Constitution is virtually 

identical and affords the same prohibition against 

convicting or charging a person twice for the same 

offense. In order to determine whether a double jeopardy 

violation has occurred, the Blockburger same-elements 

test is employed: “whether the act or transaction 

complained of constitutes a violation of two distinct 

statutes and, if it does, if each statute requires proof of a 

fact the other does not. Put differently, is one offense 

included within another?” Commonwealth v. Burge, 947 

S.W.2d 805, 811 (Ky. 1996) (internal citation omitted) 

(adopting the test set forth in Blockburger v. U.S., 284 

U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932)).

Both Barbour and the Commonwealth have put forth several arguments in support 

of their respective positions. However, we hold that Barbour’s arguments must fail 

because the jury instructions at issue permitted the jury to decide that he was guilty 

under instructions that required proof of a fact that the other did not. We shall now 

examine the instructions at issue in this case as well as their statutory bases.
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KRS 520.095(1) provides that a person is guilty of first-degree fleeing 

or evading police:

(a) When, while operating a motor vehicle with intent to 

elude or flee, the person knowingly or wantonly disobeys 

a direction to stop his or her motor vehicle, given by a 

person recognized to be a police officer, and at least one 

(1) of the following conditions exists:

1. The person is fleeing immediately after 

committing an act of domestic violence as 

defined in KRS 403.720;

2. The person is driving under the influence 

of alcohol or any other substance or 

combination of substances in violation of 

KRS 189A.010;

3. The person is driving while his or her 

driver’s license is suspended for violating 

KRS 189A.010; or

4. By fleeing or eluding, the person is the 

cause, or creates substantial risk, of serious 

physical injury or death to any person or 

property[.]

Instruction No. 4 addressed this charge under the indictment:

You will find the Defendant guilty of First-Degree 

Fleeing/Evading Police under this Instruction if, and only 

if, you believe from the evidence beyond a reasonable 

doubt all of the following:

A. That in Hardin County on or about September 

28, 2018 and before the finding of the Indictment 

herein, he operated a motor vehicle with the intent 

to flee or elude;
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AND

B. That he knowingly or wantonly disobeyed a 

direction to stop his motor vehicle, which direction 

was given by a person whom he recognized to be a 

police officer;

AND

C. That he was operating the motor vehicle under 

the influence of intoxicants which may impair 

one’s driving ability;

OR

That his act of fleeing or eluding caused or created 

a substantial risk of serious physical injury or 

death to any person or serious injury to property.

As to the DUI charge, KRS 189A.010(1)(c) provides that “[a] person 

shall not operate or be in physical control of a motor vehicle anywhere in this state 

. . . [w]hile under the influence of any other substance or combination of 

substances which impairs one’s driving ability[.]” Instruction No. 6 addressed this 

charge:

You will find the Defendant Guilty of Operating a 

Motor Vehicle While Under the Influence of Alcohol or 

Other Substance Which Impairs Driving Ability if, and 

only if, you believe from the evidence beyond a 

reasonable doubt all of the following:

A. That in Hardin County on or about September 

28, 2018 and within 12 months before the finding 

of the Indictment herein he operated a motor 

vehicle;
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AND

B. That while doing so, he was under the 

influence of a substance which may impair one’s 

driving ability[.]

The Commonwealth argues that the jury could have found Barbour 

guilty of the fleeing or evading police charge by finding that he caused or created a 

substantial risk of serious physical injury or death or serious injury to property, and 

the instruction did not require a finding that he was operating his motor vehicle 

under the influence in order to find guilt. Therefore, there can be no double 

jeopardy violation. It cites to Davis v. Commonwealth, 967 S.W.2d 574, 582 (Ky. 

1998), in support of this argument, in which the Supreme Court addressed the 

unanimous verdict requirement in criminal prosecutions:

Nothing less than a unanimous verdict is permitted 

in a criminal case. KRS 29A.280(3); Wells v. 

Commonwealth, Ky., 561 S.W.2d 85 (1978). Unanimity 

becomes an issue when the jury is instructed that it can 

find the defendant guilty under either of two theories, 

since some jurors might find guilt under one theory, 

while others might find guilt under another. If the 

evidence would support conviction under both theories, 

the requirement of unanimity is satisfied.

On the other hand, Barbour argues that by using this reasoning, the 

Commonwealth was ignoring its theory of the case that he was driving while he 

was impaired, which he asserts the jury validated by convicting him of the DUI 

charge. 
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We must agree with the Commonwealth that the instructions at issue 

did not require the jury to find that Barbour had been operating his motor vehicle 

under the influence in order to convict him of fleeing or evading police. The 

evidence certainly established proof of both alternatives included in Instruction No. 

4. Therefore, we hold that Barbour’s right to be protected against double jeopardy 

was not violated in this instance and that vacation of the DUI conviction is not 

warranted. 

For the foregoing reasons, the judgment of the Hardin Circuit Court is 

affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Steven J. Buck

Assistant Public Advocate

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Mark D. Barry

Assistant Attorney General

Frankfort, Kentucky