RENDERED: FEBRUARY 24, 2022

TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0186-MR

JOSEPH CAPSTRAW APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT

V. HONORABLE KELLY EASTON, JUDGE 

NO. 18-CR-00696

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT 

AFFIRMING IN PART AND VACATING IN PART 

Joseph Capstraw (Capstraw) was convicted of murder and sentenced to 

fifty years of imprisonment following a jury trial. He brings this appeal as a 

matter of right.1 He asserts that his conviction must be reversed because: (1) 

the trial court allowed the admission of eight gruesome photographs that did 

not satisfy a KRE2 403 balancing test; (2) the jury instructions violated his 

right to a unanimous verdict; and (3) his Confrontation Clause3 rights were 

violated. He further argues that the jail fees imposed against him must be 

vacated. For the reasons that follow, we affirm Capstraw’s conviction but 

vacate the jail fees imposed against him. 

 

1 Ky. Const. § 110.

2 Kentucky Rule of Evidence.

3 See U.S. Const. amend. VI. 
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Approximately two months before the events at issue in this case,

Capstraw met the victim, eighteen-year-old Amber Robinson (Amber). The pair 

met at a “rainbow gathering” in Georgia, which Capstraw described as a “hippie 

commune festival” where “people get together and pray for world peace.” After 

the gathering was over, they made plans to hitchhike to every state in the 

country together. Capstraw began hitchhiking two years prior when he aged 

out of foster care at the age of eighteen. 

On July 7, 2018, Amber and Capstraw were hitchhiking on a highway 

near Louisville, Kentucky. A stranger named Jacob Barnes (Jacob), 

accompanied by his friend Levi, offered the pair a ride, which they accepted. 

When Jacob realized that Amber and Capstraw did not have a place to sleep 

that night, he offered to let the pair stay with him at his home in Hardin 

County; they agreed. The group then stopped at a gas station near Jacob’s 

home and picked up another individual named Amber Noe (Noe). 

It was undisputed that when the group arrived at Jacob’s home “the 

atmosphere was fine.” Jacob said that Amber and Capstraw were “singing and 

playing a ukulele” and “everyone was having fun.” Shortly thereafter, Jacob, 

Levi, and Noe went to Louisville so Noe could buy heroin, leaving Amber and 

Capstraw at the home by themselves for approximately two hours. Capstraw 

claimed that, during that time, he and Amber drank almost an entire fifth of 

bourbon between them. He further claimed that he and Amber were having a 
3

“really good conversation” when Amber began disparaging Jacob; she was 

upset that he was taking Noe to get drugs. An argument ensued. As discussed 

below, Capstraw gave differing accounts of what occurred next, but 

consistently maintained that he “blacked out,” and when he came to, Amber 

was dead on the living room floor. 

Capstraw then left Jacob’s home and went to two other homes in the 

neighborhood in an apparent attempt to get help, but he got no response. The 

third home he went to was occupied by Steven Ginn (Steven). Steven testified 

that he was in bed asleep when someone began banging on his front door 

between midnight and 1 a.m. He went to the door and saw Capstraw standing 

on his porch covered in blood. Steven told Capstraw to stay where he was 

while Steven went to get his oldest son out of bed. When Steven and his son 

came back, Capstraw “kept blurting out that he had done something,” and 

asked them to follow him. Steven and his son obliged. Steven said that as 

they were walking back to Jacob’s house with Capstraw, he kept saying that he 

had done something bad and then said, “I killed her.” 

Sargent Brandon Huggins (Sgt. Huggins) and Officer Charles Foushee 

(Ofc. Foushee) were dispatched to the neighborhood that night in response to 

calls about a man fitting Capstraw’s description banging on the doors of several 

homes. Sgt. Huggins testified that Steven flagged him down and directed him 

to Jacob’s address. When Sgt. Huggins arrived at Jacob’s home, Capstraw was 

on the ground in the front yard screaming “save her, save her, save her.” Ofc.
4

Foushee said that Capstraw was “very erratic”: he was sweating profusely, 

screaming, and “moving around a lot.” The officers detained Capstraw and 

questioned him about what had occurred. Capstraw told them that Amber had 

attacked him with a knife, he blacked out, and when he came to, she was dead. 

Sgt. Huggins testified that Capstraw smelled “a little bit like alcohol,” but Ofc. 

Fouchee did not detect the smell of alcohol, nor did he observe any other signs 

of intoxication apart from Capstraw’s erratic behavior. The officers observed 

several superficial cuts on Capstraw’s inner left forearm, which was bandaged 

by emergency medical services at the scene. The officers did not observe, and 

Capstraw did not report, any other injuries. 

Capstraw was then transported from the crime scene to the police station 

to be interviewed by then-Detective Madison Kuklinski (Det. Kuklinski). Det. 

Kuklinski testified that, during the interview, Capstraw did not admit to 

anything, but made statements such as “I know what I did,” and “I guess I 

killed her.” He told her that he and Amber got into an argument because “she 

started judging Jacob.” Capstraw claimed that he tried to calm Amber down, 

but she went into the kitchen and got a knife and attacked him with it, causing 

the cuts on his left arm. He was adamant that he did not cut himself. During 

the interview, Capstraw began complaining about having a lot of pain in his 

hands. Det. Kuklinski said that she transported Capstraw to the hospital after 

the interview to have his hands and left arm treated. 

At trial, Capstraw’s version of what occurred changed. He testified that 

he and Amber got into an argument and Amber struck him in the face; he then 
5

blacked out, and Amber was dead when he came to. Capstraw said he then got 

a knife from the kitchen and tried to kill himself by cutting his arm because he 

thought Amber was dead. He alleged that, as he was cutting himself, he heard 

Amber breathing. He claimed that was the point at which he ran out of the 

house and began banging on doors in the neighborhood. 

Dr. Jefferey Springer (Dr. Springer) was the forensic pathologist that 

conducted Amber’s autopsy. He opined that her causes of death were blunt 

force trauma and strangulation. He further testified that Amber was a petite 

5’3”, and weighed only 92 pounds, whereas Cox was 6’3” and weighed 188 

pounds. Her toxicology screen determined that her blood alcohol level was 

.093% approximately two hours before her death. 

The jury was instructed on murder, second-degree manslaughter, and 

the defense of intoxication. It found Capstraw guilty of murder and sentenced 

him to fifty years. 

Additional facts are discussed below as necessary. 

II. ANALYSIS

A. The trial court did not abuse its discretion by failing to exclude eight 

gruesome photographs.

Capstraw’s first assignment of error on appeal is that the trial court 

erred by allowing the admission of eight gruesome photographs: four from 

Amber’s autopsy and four from the crime scene. Capstraw’s argument was 

preserved by his pre-trial motion in limine to exclude the photographs on the 

grounds that they did not satisfy a KRE 403 balancing test, and, therefore, 
6

should not be admitted in accordance with this Court’s holding in Hall v. 

Commonwealth.

4 We therefore review the trial court’s ruling for an abuse of 

discretion.5 “The test for abuse of discretion is whether the trial judge's 

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.”6 

For context, we will first provide descriptions of the photographs, as well 

as their accompanying testimony at trial. 

Exhibits 4-7 are autopsy photos that were introduced during Dr. 

Springer’s testimony. We note here that each of the autopsy photos were taken 

after Amber’s blood was removed from her body. 

Exhibit 4 depicts Amber’s face and neck from a straight-on angle. Dr. 

Springer testified that the photograph shows the multiple blunt force traumas 

she sustained to her face and skull, including several lacerations, abrasions, 

and contusions. Specifically, he discussed the approximately 1 inch long, 

deep, vertical cut between her eyebrows beneath which the frontal bone of her 

skull was fractured. He further noted that both of her eyes were black, and 

there were smaller cuts below both eyes. The picture also shows that her nose 

was broken and displaced. And, finally, Amber’s mouth is only slightly open in 

the photograph, but one can see something in her mouth on the left side. Dr. 

 

4 468 S.W.3d 814 (Ky. 2015).

5 See, e.g., Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky. 2011).

6 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
7

Springer explained that, while most of her teeth were intact, her maxilla—the 

bone holding her upper row of teeth in place—was fractured and had fallen 

down into her mouth. 

Exhibit 5 is a photo of the left side of Amber’s neck. Dr. Springer 

testified that she also had bruising to the right side of her neck, though it is 

not depicted in the photo. The photo demonstrates a lack of ligature marks, 

which led Dr. Springer to determine that manual strangulation was used. This 

contributed to his conclusion that strangulation was one of the causes of 

death.

Exhibit 6 shows a close-up of Amber’s mouth. Dr. Springer discussed 

how the photo shows contusions and lacerations sustained around her mouth, 

as well as a tooth that was displaced due to her broken maxilla. 

Exhibit 7 is a photo of the back-left side of Amber’s head. Her left ear is 

pulled away from her head, and there are bruises on the back of her ear and 

the skin on her skull behind it. Dr. Springer said that the back of the ear is a 

difficult place to injure unless it has been directly struck by something. He 

opined that the bruising was also due to blunt force. 

Exhibits 28-31 were pictures from the crime scene that were introduced 

during Det. Kuklinski’s testimony. 

Exhibit 28 depicted how Amber’s body was found. It shows her laying on 

her back on the floor of the living room in front of the couch with a large pool of 

blood beneath and around her. Det. Kuklinski discussed how the photo 

depicts blood and tissue spatter around her on both the floor and the couch 
8

itself. It also shows a red, foamy substance coming out of her mouth, which 

indicated that she aspirated on her blood. The photo is taken from such a 

distance that the extensive damage to her face cannot be discerned, though it 

is clearly covered in blood. 

Exhibit 29 is a close-up of the bruising on the right side of Amber’s neck. 

Det. Kuklinski testified that the fact that bruising was already present when 

the police arrived at the scene indicated that a tremendous amount of force 

was used to strangle her, as bruises usually take some time to develop. 

Exhibit 30 is a cropped picture that shows Amber’s left arm. A large blue 

bruise can be seen on the inner part of her arm just above her elbow crease. 

Det. Kuklinski said that this kind of bruise is often seen in domestic violence 

situations: the suspect will grab the victim by the arm and cause bruising in 

that area. And, again, the fact that the bruise had already appeared 

demonstrated the amount of force with which it was inflicted. 

Finally, Exhibit 31 is a close up of an entire tooth that was found next to 

Amber’s body. Det. Kuklinski testified that the fact that a whole tooth was 

knocked out demonstrated the amount of force her mouth sustained. 

During a pre-trial hearing on Capstraw’s motion in limine, the trial court 

went through each of the foregoing eight photographs, as well as an additional 

autopsy photo that depicted how the retina in one of Amber’s eyes had 

“exploded.” The trial court had the Commonwealth explain the probative value 

of each of the photographs individually. The trial court then went through
9

each photo and discussed the reasons that each was admissible or 

inadmissible. 

The court found that Exhibit 4 was not particularly gruesome in that it 

was an autopsy photo, and it was necessary in order for the Commonwealth to 

show the level, nature, and number of injuries. It likewise found that Exhibit 5 

was not problematic because it only shows the strangulation marks on Amber’s 

neck. It found that Exhibit 6 was, again, not very gruesome and was needed to 

show the level of disruption to Amber’s facial structures that was not as 

apparent in Exhibit 4. It also found Exhibit 7 to not be gruesome because it 

only showed her ear and bruising. While it acknowledged that Exhibit 28 was

“perhaps the most troubling and gruesome of all,” it nevertheless found that “it 

is what it is: it [showed] where the body was, it [showed] . . . the condition of 

the body,” and it therefore had to be admitted. The court had the 

Commonwealth crop Amber’s head and additional blood from Exhibit 29 so 

that it showed only the bruising on her neck. It similarly had the 

Commonwealth crop Exhibit 30 to remove a pool of blood and show only her 

arm. And, finally, the court had the Commonwealth use a photograph that 

excluded additional blood and showed only the tooth that had been knocked 

out for Exhibit 31. 

The court completely excluded the autopsy photograph depicting her eye

because it “was so shockingly a problem.” It directed the Commonwealth to 

have Dr. Springer explain the injury without using the photograph. 
10

Before this Court, Capstraw contends that the probative value of many of 

the photos was quite low. He further asserts that Dr. Springer and Det. 

Kuklinski could have adequately described Amber’s injuries in a way that 

sufficiently proved those facts without the high risk of prejudice engendered by 

the admission of the gruesome photos. Therefore, he argues, the trial court 

abused its discretion by admitting them. We disagree. 

One of the most basic principles regarding the admission of evidence is 

the balancing test required under KRE 403, which directs that “[a]lthough 

relevant, evidence may be excluded if its probative value is substantially 

outweighed by the danger of undue prejudice[.]” Concerning gruesome 

photographs in particular, it is well-established that 

[b]ecause the Commonwealth must prove the corpus delicti, 

photographs that are probative of the nature of the injuries 

inflicted are not excluded unless they are so inflammatory that 

their probative value is substantially outweighed by their 

prejudicial effect. KRE 403. Thus, a photograph of the crime 

scene does not become inadmissible simply because it is gruesome 

and the crime is heinous.7

This principle was reinforced by this Court in Hall v. Commonwealth.

8 In 

Hall, the trial court allowed the Commonwealth to introduce twenty-eight crime 

scene and autopsy photos over the defendant’s objection.9 Several of the 

photos were needlessly cumulative in that they showed different angles of the 

same gruesome injuries, and, therefore, “the probative value of many of the 

 

7 Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003) (internal citations 

and quotation marks omitted). 

8 468 S.W.3d 814 (Ky. 2015).

9 Id. at 820.
11

gruesome photos was quite low.”10 This Court was particularly troubled by the 

fact that the trial court determined the admissibility of the photographs “all at 

once, with no emphasis on their relative or incremental probative value.”11

Consequently, in Hall, we emphasized that trial courts must conduct a 

KRE 403 balancing test on each gruesome photo individually before allowing

its admission: 

There are three basic inquiries that the trial court must undertake 

when determining admissibility of relevant evidence under Rule 

403. First, the trial court must assess the probative worth of the 

proffered evidence; second, it must assess the risk of harmful 

consequences (i.e., undue prejudice) of the evidence if admitted; 

and last, it must evaluate whether the probative value is 

substantially outweighed by the harmful consequences.12

Further, “the judge must consider the photographs within the full evidentiary 

context of the case, giving due regard to other evidence admitted as well as 

evidentiary alternatives[.]”13 However, “the evidence must be highly 

inflammatory and prejudicial to compel a party to employ evidentiary 

alternatives.”14 

In this case, the trial court did precisely what we asked of it in Hall: it

considered each photograph individually and assessed its probative value 

against the risk of undue prejudice to the defendant carefully. It also had the 

Commonwealth crop certain crime scene photographs so that they showed 

 

10 Id. at 825.

11 Id. at 827.

12 Id. at 823.

13 Id. at 824.

14 Id. 
12

precisely what the Commonwealth was trying to demonstrate and excluded 

extraneous gruesome details. And, it directed the Commonwealth to employ an 

evidentiary alternative for a particularly disturbing autopsy photo of Amber’s 

eye. 

Further, we agree with the trial court’s determination that the probative 

value of the admitted photos was not substantially outweighed by a risk of 

undue prejudice to Capstraw. The only issue the jury had to decide in this 

case was whether Capstraw acted intentionally or wantonly. “Proof of intent . .

. may be inferred from the character and extent of the victim's injuries.”

15 

Therefore, the probative value of the photos that demonstrated Amber’s 

numerous injuries and the corresponding amount of force required to inflict 

them—Exhibits 4, 6, 7, 29, 30, and 31—was quite high. And, as the trial court 

noted, none of those photos were gruesome enough to warrant the use of 

evidentiary alternatives. The remaining two photographs, Exhibits 5 and 28 

also had high probative values. Exhibit 5 demonstrated that one of Amber’s 

causes of death was manual strangulation, which further suggested that 

Capstraw acted with intent. Exhibit 28, which is by far the most gruesome 

photograph in the group, depicted how Amber was discovered by police at the 

crime scene. This photograph accordingly had a very high probative value as it 

was essential to the Commonwealth in proving the corpus delicti. 

 

15 Ratliff v. Commonwealth, 194 S.W.3d 258, 275 (Ky. 2006).
13

Based on the foregoing, we hold that the trial court did not abuse its 

discretion.

B. Capstraw’s right to a unanimous jury verdict was not violated. 

Capstraw next alleges that the jury instruction for murder violated his 

right to a unanimous verdict. Those instructions directed:

You will find the Defendant guilty of Murder under this Instruction 

if, and only if, you believe from the evidence beyond a reasonable 

doubt all of the following: 

A. That in this county on or about the evening hours of 

July 6, or the early morning hours of July 7, 2018, 

and before the finding of the Indictment herein, he 

killed Amber Robinson by inflicting blunt force 

trauma, or strangulation, or both; AND

B. That in so doing:

(1) He caused the death of Amber 

Robinson intentionally; OR

(2) He was wantonly engaging in conduct 

which created a grave risk of death to 

another and thereby caused the death of 

amber Robinson under circumstances 

manifesting an extreme indifference to 

human life. 

Capstraw argues that these instructions violated his right to a unanimous 

verdict because the jury was instructed on two different mens rea

requirements: intentional and wanton. Accordingly, he argues, some of the 

jurors could have believed he acted intentionally, while others could have 

believed he acted wantonly, thereby violating his right to a unanimous verdict. 

However, Capstraw did not properly preserve this argument for our 

review. While we acknowledge that Capstraw proffered his own jury 
14

instructions that objected to the giving of any jury instructions, that blanket 

objection is insufficient: 

No party may assign as error the giving or the failure to give an 

instruction unless the party's position has been fairly and 

adequately presented to the trial judge by an offered instruction 

or by motion, or unless the party makes objection before the 

court instructs the jury, stating specifically the matter to which 

the party objects and the ground or grounds of the objection.

16 

And, upon careful inspection of the record, Capstraw did not object to the jury 

instruction that was ultimately submitted to the jury. While discussing the 

jury instructions with the trial court, the following exchange regarding the 

murder instruction occurred:

Defense: We possibly have one concern that we’re still fleshing 

out. It’s that, the way the jury form is set up, it seems that, we’re 

concerned about a possible inconsistent verdict where there’s a 

split between intentional or wanton murder and there’s no way 

to—

Court: That’s not—

Commonwealth: That’s not an issue. 

Defense: Fair enough. 

Court: I see that, but the case law is that if six of the jurors believe 

it was intentional and six of them think it was wanton with 

extreme indifference, since it is the same offense, murder, same 

classification, same penalty, they’re not required to be unanimous 

as long as each of them believe one of those two things. I think 

that is the law in Kentucky.

The defense did not pursue the issue further. We therefore hold that this issue 

is unpreserved.

Nevertheless, Capstraw’s assignment of error implicates his 

constitutional right to a unanimous verdict.17 “[A]lleged constitutional errors, if 

 

16 Kentucky Rule of Criminal Procedure (RCr) 9.54(2).

17 Ky. Const. § 7. 
15

unpreserved, are subject to palpable error review.”18 We will accordingly review 

for palpable error.19

Capstraw asserts that we must overturn our well-established precedent 

that a “‘combination’ [murder] instruction, [that] permits a guilty verdict even 

though some of the jurors believed the killing intentional and others wanton . .

. does not deprive the defendant of a unanimous verdict, as required by this 

State's Constitution, provided that the evidence reasonably supports both 

theories of the crime.”20 His basis for this argument is the United States 

Supreme Court’s recent holding in Ramos v. Louisiana.

21

In Ramos, the United States Supreme Court simply held that the United 

States Constitution’s Sixth Amendment right to a unanimous verdict in 

criminal trials applies to all states through the Fourteenth Amendment.22 This 

holding truly only affected the two states that remained holdouts on that issue: 

Oregon and Louisiana.23 In contrast, Kentucky has long required criminal 

convictions by a unanimous jury verdict. Over four decades ago, in Wells v. 

Commonwealth, this Court held that “Section 7 of the Kentucky Constitution 

requires a unanimous verdict reached by a jury of twelve persons in all

 

18 Walker v. Commonwealth, 349 S.W.3d 307, 313 (Ky. 2011).

19 See RCr 10.26. 

20 Malone v. Commonwealth, 364 S.W.3d 121, 130 (Ky. 2012) (citing Robinson v. 

Commonwealth, 325 S.W.3d 368 (Ky. 2010)). 

21 __ U.S. __, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020).

22 Ramos, 140 S. Ct. at 1397.

23 Id. at 1394.
16

criminal cases.”24 And, several cases that were rendered post-Wells made it 

clear that jury instructions such as the one given in this case do not violate a 

defendant’s right to a unanimous verdict as long as the evidence was sufficient 

to support a combination instruction.

25 We are accordingly unconvinced that 

Ramos requires us to revisit our long-standing precedent, and hold that 

Capstraw’s right to a unanimous verdict was not violated. 

C. Capstraw’s Confrontation Clause rights were not violated. 

Capstraw’s third assignment of error is that his Sixth Amendment 

Confrontation Clause rights were violated when Det. Kuklinski was permitted 

to testify about blood alcohol test results from Capstraw’s certified medical 

records. Capstraw acknowledges that he failed to preserve this error at the 

trial court level, but requests that this Court review for palpable error.26 “The 

required showing for relief from a palpable error is probability of a different 

result or error so fundamental as to threaten a defendant’s entitlement to due 

process of law.”27

Det. Kuklinski testified that during her interview with Capstraw, he 

began complaining about pain in his hands. Det. Kuklinski also had to remove 

 

24 561 S.W.2d 85, 87 (Ky. 1978). See also, Kentucky Revised Statute (KRS)

29A.280(3) (“A unanimous verdict is required in all criminal trials by jury”); RCr 

9.82(1) (“The verdict shall be unanimous. It shall be returned by the jury in open 

court.”). 

25 See, e.g., Commonwealth v. Hasch, 421 S.W.3d 349, 365 (Ky. 2013); Malone,

364 S.W.3d at 130; Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010); 

Benjamin v. Commonwealth, 266 S.W.3d 775, 785 (Ky. 2008).

26 See RCr 10.26. 

27 See, e.g., King v. Commonwealth, 554 S.W.3d 343, 375 (Ky. 2018).
17

the bandages from his left arm in order to photograph the numerous cuts he 

had. Det. Kuklinski therefore transported Capstraw to the hospital for 

treatment after the interview was complete. The certification on the medical 

records from that admission stated: 

Hardin Memorial Hospital certification regarding patient Joseph 

Capstraw . . . The copies of records for which this certification is 

made are true and complete reproductions of the original records 

housed in Hardin Memorial Hospital. The original records are 

made in the regular course of business, and it was the regular 

course of Hardin Memorial Hospital to make such records at or 

near the time of the matter recorded. This certification is given 

pursuant of KRS 422.300-.330 by the custodian for the records in 

lieu of personal appearance. 

After the Commonwealth had Det. Kuklinski read the records’ certification, the 

following exchange occurred:

Q: Do you see a test for blood alcohol?

A: Yes sir. 

Q: Does it give you an ethanol reading?

A: It does. 

Q: And what is the reading?

A: Less than ten. 

Q: And does it give you a way to interpret what does less than ten 

mean?

A: There is a key and it says, “less than ten essentially negative.”

In addition, the emergency room physician’s clinical report stated: “Patient 

brought into the ED by EPD for medical clearance for an arm laceration.” And, 

the radiology report noted that Capstraw had “right hand pain in the fifth 

digit.” The medical records were not entered into evidence. 

During Det. Kuklinski’s cross-examination, the defense elicited that 

Capstraw’s blood samples were taken by the hospital approximately ten hours 

after the crime occurred. 
18

Capstraw contends that, because he was in police custody when the 

hospital tested his blood, the results should be considered “testimonial in 

nature.” Consequently, he argues that allowing Det. Kuklinski to testify about 

the results instead of the hospital employee that tested his blood violated his 

Confrontation Clause rights under the United States Supreme Court’s ruling in 

Crawford v. Washington.

28 We disagree and hold that this Court’s ruling in 

Little v. Commonwealth29 is dispositive. 

In Crawford, the United States Supreme Court held “that the Sixth 

Amendment prohibits the admission of the testimonial statement of a declarant 

who does not appear at trial, unless the declarant is unavailable to testify and 

the defendant had a prior opportunity for cross-examination.”

30 The Crawford 

Court “[left] for another day any effort to spell out a comprehensive definition of 

‘testimonial.’”

31 However, it noted that one class of statement that qualified as 

“testimonial” was a statement “made under circumstances which would lead an 

objective witness reasonably to believe that the statement would be available 

for use at a later trial.”32 In addition, “[t]he Supreme Court's post-Crawford

decisions in Melendez–Diaz v. Massachusetts33 and Bullcoming v. New Mexico34

 

28 541 U.S. 36 (2004).

29 422 S.W.3d 238 (Ky. 2013).

30 Peters v. Commonwealth, 345 S.W.3d 838, 842 (Ky. 2011).

31 Crawford, 541 U.S. at 68.

32 Id. at 52.

33 557 U.S. 305 (2009).

34 564 U.S. 647 (2011).
19

distinguished between testimonial medical records and records intended for 

medical treatment.”

35 This distinction was put on full display in this Court’s 

ruling in Little. 

In Little, the defendant Shelby Little (Little) was convicted of several 

crimes in relation to a motor vehicle accident he caused while under the 

influence of alcohol.36 Little was injured during the accident, and was 

transported from the crime scene to the hospital.37 On appeal to this Court, 

Little argued that a report created by the hospital when he arrived for 

treatment was presented at his trial in violation of his Confrontation Clause 

rights because “it was introduced without the testimony of the person who 

prepared it.”38 The report, which was created by the hospital, was “a 

comprehensive blood analysis report that [contained], among other things, 

information regarding Little's blood alcohol level shortly after his hospital 

admission.”39

The Little Court held that Little’s Confrontation Clause rights were not 

violated because the report was not testimonial in nature. It reasoned:

In Melendez–Diaz, the Supreme Court analyzed the admissibility of 

affidavits reporting the results of a forensic drug test. The Court 

found forensic reports prepared for trial to be “testimonial” but 

“medical reports created for treatment purposes” to “not be 

testimonial under our decision today.” Justice Sotomayor's 

 

35 Little, 422 S.W.3d at 246.

36 Id. at 240.

37 Id. at 245.

38 Id. 

39 Id. 
20

concurring opinion in Bullcoming v. New Mexico expanded upon 

the importance of this delineation: When the primary purpose of a 

statement is not to create a record for trial, the admissibility of the 

statement is the concern of state and federal rules of evidence, not 

the Confrontation Clause. The concurrence further explained that, 

to determine if a statement is testimonial, we must decide whether 

it has a primary purpose of creating an out-of-court substitute for 

trial testimony.

40

This Court noted that the record established that “Little was treated at 

University Hospital for injuries he received in the collision, including 

emergency surgery for a fractured femur.”

41 And, consequently, the 

“comprehensive blood analysis report was clearly intended for the primary 

purpose of providing that medical treatment to Little, and was not intended to 

establish or prove a fact or serve as a substitute for trial testimony.”42 The 

admission of the report was therefore governed by KRE and not the 

Confrontation Clause.43

In that vein, the Little Court further held that the hospital’s report was a 

business record pursuant to KRE 806(3) that was properly certified under KRS 

422.305:

Business records of regularly conducted activities, such as medical 

records, are subject to an exception to the hearsay rule under KRE 

803(6). A medical record must first pass the authentication 

requirements before it can be admitted under the hearsay 

exception. Typically, the testimony of “the custodian or other 

qualified witness” is a foundational requirement for the admission 

of a medical record under the business records exception. KRE 

 

40 Id. at 246 (internal citations and quotation marks omitted). 

41 Id. 

42 Id. (internal quotation marks omitted). 

43 Id. 
21

803(6)(A). However, a medical record will qualify as selfauthenticating when it consists of medical charts or records of a 

hospital that has elected to proceed under the provisions of KRS 

422.300 to 422.330[.] KRE 803(6)(A).

[. . .]

[T]he hospital laboratory report was properly admitted as a 

business record pursuant to KRE 803(6). The testimony of the 

person who prepared the report was not required because the 

report was not testimonial and Little's confrontation rights were 

not violated by its admission. The report was a business record 

properly certified under KRS 422.305(2), and the trial court did not 

err in admitting it.44

In Capstraw’s case, the record is clear that he was taken to the hospital 

to receive treatment for his hands and left arm. It is likewise clear that the 

complained-of blood alcohol test was administered as part of his treatment. 

Therefore, as in Little, the corresponding medical report was made for the 

purposes of medical treatment and is not “testimonial in nature.” Its 

admissibility was therefore not governed by the Confrontation Clause. Further, 

the medical records’ certification stated that it was created “in the regular 

course of business” and that the certification was “given pursuant of KRS 

422.300-.330 by the custodian for the records in lieu of personal appearance.” 

The medical record was accordingly a business record pursuant to the hearsay 

exception of KRE 806(3) that was properly certified under KRS 422.305(2). No 

error, palpable or otherwise, occurred. 

 

44 Id. 246-47 (internal citations and quotation marks omitted).
22

D. The trial court erred by imposing jail fees against Capstraw. 

Capstraw’s final argument is that the trial court erred by imposing jail 

fees against him as part of his sentencing. He acknowledges that this error 

was not properly preserved. “Nonetheless, since sentencing is jurisdictional it 

cannot be waived by failure to object. Thus, sentencing issues may be raised 

for the first time on appeal[.]”45 Capstraw requests review for palpable error. 

Capstraw’s sentencing order states: “Defendant is ordered pursuant to 

KRS 411.265 and KRS 532.356 to reimburse costs & fees of incarceration in 

the amount of record with the Hardin County Jailer as of the date of 

sentencing. The costs & fees shall be reimbursed to the Hardin County Jailer.” 

Capstraw argues that this was error because there was no evidence of record 

that the Hardin County jail had adopted a jail fee reimbursement policy. The 

Commonwealth agrees with his argument, as does this Court. 

This issue has been addressed in several unpublished cases from this 

Court and the Court of Appeals. In Weatherly v. Commonwealth, we vacated 

jail fees imposed against the defendant because “there [was] no evidence that 

Fulton County had established a jail fee reimbursement policy pursuant to 

statute, and no evidence that such policy was ever presented to the trial court

to be considered in sentencing.”

46 The Court of Appeals followed suit in three

 

45 Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010) (internal citations 

and quotation marks omitted).

46 2017-SC-000522-MR, 2018 WL 4628570, at *10 (Ky. Sept. 27, 2018). See 

also, Melton v. Commonwealth, 2016-SC-000552-MR, 2018 WL 898307, at *12 (Ky. 

Feb. 15, 2018).
23

subsequent unpublished cases: Campbell v. Commonwealth,

47 Jackson v. 

Commonwealth,

48 and Bishop v. Commonwealth49. In each of those cases, the 

Court of Appeals vacated the imposition of jail fees due to a lack of evidence 

that a jail fee reimbursement policy had been adopted by the jailer with the 

approval of the county’s governing body.

With our published opinion today, we reiterate our holding in Weatherly

and emphasize that in order to impose jail fees against a criminal defendant 

during sentencing, there must be some evidence presented that a jail fee 

reimbursement policy has been adopted by the county jailer with approval of 

the county’s governing body in accordance with KRS 441.265(2)(a).50 

Consequently, because there was no such evidence presented during 

Capstraw’s sentencing, the jail fees imposed against him must be vacated. 

 

47 2020-CA-0690-MR, 2021 WL 1051590 (Ky. App. Mar. 19, 2021).

48 2018-CA-000543-MR, 2019 WL 2246172 (Ky. App. May 24, 2019).

49 2017-CA-001793-MR, 2019 WL 103924 (Ky. App. Jan. 4, 2019).

50 “The jailer may adopt, with the approval of the county's governing body, a 

prisoner fee and expense reimbursement policy, which may include, but not be limited 

to, the following:

1. An administrative processing or booking fee;

2. A per diem for room and board of not more than fifty dollars ($50) per 

day or the actual per diem cost, whichever is less, for the entire period of 

time the prisoner is confined to the jail;

3. Actual charges for medical and dental treatment; and

4. Reimbursement for county property damaged or any injury caused by 

the prisoner while confined to the jail.” KRS 441.265(2)(a).
24

E. CONCLUSION

Based on the foregoing, Capstraw’s sentence is affirmed, but the portion of the 

judgment whereby jail fees are imposed against him is hereby vacated. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Aaron Reed Baker

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Mark Daniel Barry 

Assistant Attorney General