RENDERED: DECEMBER 17, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0600-MR

HIRAM HERNANDEZ APPELLANT

APPEAL FROM KENTON CIRCUIT COURT

v. HONORABLE PATRICIA M. SUMME, JUDGE

ACTION NO. 19-CR-01318

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, DIXON, AND McNEILL, JUDGES.

McNEILL, JUDGE: Hiram Hernandez appeals from the Kenton Circuit Court’s 

judgment sentencing him to seven years and six months of imprisonment after a 

jury found him guilty of second-degree assault. See Kentucky Revised Statute 

(KRS) 508.020. Hernandez argues the trial court erred by (1) improperly limiting 
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his questions in voir dire; and (2) erroneously admitting “deterrence” testimony 

during the sentencing phase of his trial. Upon review, we affirm.

1. LIMITATION OF VOIR DIRE

The first issue Hernandez raises on appeal involves a line of 

questioning the trial court prohibited his counsel from asking the prospective jurors 

during voir dire. Those questions proceeded as follows:

DEFENSE: The Commonwealth has the burden of 

proof. We’re not really allowed to define that, but, as the 

Commonwealth said, it is a burden they have to 

overcome. We do not have to present any evidence. If, 

at the end of the case, the Commonwealth has not met 

whatever to you means “beyond a reasonable doubt,” 

even if we have not presented any evidence, you would 

still find them not guilty of that point because they have 

not overcome their burden of reasonable doubt. We do 

not have to present any evidence. So, could everyone 

agree that no matter what, if they don’t overcome that 

burden they will still find my client innocent, even if we 

do not necessarily present any evidence or anything 

along those lines?

Along those lines, the Commonwealth, or my client, has 

the right to remain silent. Does anyone here, raise your 

hands, think that if you were charged with a crime, you 

would want to testify to protest your innocence? Does 

anyone here think they would testify at their trial? So, 

[juror], I saw your, um –

(Emphasis added.)

The Commonwealth then objected to Hernandez’s counsel continuing

the line of questioning italicized above, and a bench conference was held. There, 
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over the course of the exchange that followed, the Commonwealth elaborated upon 

its objection, and trial court explained its reasons for sustaining it: 

COMMONWEALTH: Judge, this question is geared to 

why someone would or would not testify. If I’m not 

allowed to comment, we’re not allowed to comment on 

anything about why the defendant can or cannot testify, 

anything about that, they should not be able to have any 

commentary, even in voir dire, about why someone 

would testify or not. The rule is you’re not supposed to 

have any commentary about it. They have that absolute 

right. But, once they start commenting on it, they open 

the door to us to start commenting on it.

COURT: Where are you going?

DEFENSE: I was just going to, I mean, I don’t think 

there’s an issue with asking someone why someone might 

testify or not, to get out if there are any reasons someone 

might not testify. I don’t –

COURT: Well, it is an absolute privilege, and so if you 

say someone may not want to testify because they are 

nervous, then the other, Commonwealth, gets to say they 

may not want to testify because they are guilty. So, I 

don’t disagree with this analysis. It’s been my analysis 

for a very long time now. [Inaudible.]

DEFENSE: They can’t say that. That’s what, it’s just –

COURT: They can’t, but you can’t, either. You’re 

bringing into play those things that are not yet, it’s an 

absolute privilege, and so, just exercised, and so it’s been 

my rule in this court for a very long time, and I agree 

with you, the Commonwealth can’t say or do that, but 

can also say “they might be afraid they’re inconsistent,”

they might be afraid of this, you go down a long list of 

things versus “just nervous” or “you wouldn’t want to do 

it,” so, sustained.
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(Emphasis added.)

Following this exchange, Hernandez’s counsel resumed voir dire, but 

proceeded with unrelated lines of questioning.

At trial, Hernandez did not testify. As indicated, he was ultimately 

convicted of second-degree assault. Now on appeal, Hernandez argues the trial 

court erred by limiting his voir dire questioning because, in the words of his brief:

“The principle that a defendant’s failure to testify in his 

own behalf cannot be held against him is perhaps the 

most critical guarantee under our criminal process, and it 

is vital to the selection of a fair and impartial jury that a 

juror understand this concept.” Hayes [v. 

Commonwealth, 175 S.W.3d 574,] 585 [(Ky. 2005)]. If 

jurors would be prejudiced by the defendant [sic] 

decision not to testify, the trial court would have been 

required to strike those jurors for cause. Id. Defense 

counsel cannot identify jurors holding such prejudice 

when they are precluded from making the relevant 

inquiry on voir dire. Id. Hiram was unable to identify 

prejudiced jurors. The Commonwealth argued “the rule” 

stated defense counsel could not question the jury about 

Hiram’s right to remain silent without opening the door 

to insinuations from the prosecution that his failure to 

testify was indicia of guilt. Yet the Commonwealth 

failed to cite which rule places such limits on a 

fundamental principal [sic] of voir dire.

We disagree. If the trial court had prohibited asking the venire 

members whether they would hold it against Hernandez that he refused to testify, 

then Hernandez would be correct: that would have been a proper question for voir 

dire purposes because a “yes” answer could have afforded a basis for a challenge. 
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The Sixth Amendment entitled Hernandez to an impartial jury that would not be 

adversely influenced by the fact that he exercised his constitutional right to remain 

silent. Hayes, 175 S.W.3d at 583. However, that was not the question his counsel 

asked; nor was it a question the trial court prohibited his counsel from asking. 

To review, his counsel sought to elicit from the venire members “why 

someone might testify or not, to get out if there are any reasons someone might not 

testify.” In other words, the goal was to ask the prospective jurors to speculate 

about, comment on, or draw inferences from “someone’s” exercise of their 

constitutional right to remain silent. And, as set forth in the exchange above, that 

is precisely why the Commonwealth and trial court found this line of questioning 

objectionable. This Court has held that when a defendant in a criminal prosecution 

chooses not to testify, the prosecution cannot ask jurors to draw inferences from it. 

See, e.g., Commonwealth v. Robertson, 431 S.W.3d 430, 436 (Ky. App. 2013). 

Further, the operative statute, KRS 421.225, provides:

In any criminal or penal prosecution the defendant, on his 

own request, shall be allowed to testify in his own behalf, 

but his failure to do so shall not be commented upon or 

create any presumption against him.

(Emphasis added.)

This Court reviews a trial court’s decision to limit the scope of voir 

dire under the abuse of discretion standard. See Hayes, 175 S.W.3d at 583. And, 

in circumstances where the trial court has prohibited the asking of a question 
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during that process, “it is not enough that such questions might be helpful. Rather, 

the trial court’s failure to ask these questions must render the defendant’s trial 

fundamentally unfair.” Id. (internal quotation marks and citation omitted). “The 

test for abuse of discretion in this respect is whether an anticipated response to the 

precluded question would afford the basis for a peremptory challenge or a 

challenge for cause.” Id. 

Here, this test is not satisfied. As discussed, the trial court only 

prohibited Hernandez from engaging in open-ended hypothecation and

commentary with the venire members regarding why someone might choose not to 

testify – which would only reflect upon the venire members’ ability to speculate, 

not their willingness to obey the law. Accordingly, we find no abuse in this 

respect. We reiterate, however, that the standard of our review is abuse of 

discretion. Thus, we do not endorse any per se rule forbidding trial courts from 

allowing the type of questioning that the Commonwealth found objectionable as 

set forth above; we merely find no abuse where, upon a properly raised and 

supported objection, the trial court precludes this line of questioning.

2. DETERRENCE TESTIMONY

Next, Hernandez takes issue with what he characterizes as “excessive 

and unnecessary deterrence testimony” which he asserts “rendered the sentencing 

phase of trial fundamentally unfair.” The offending testimony came from Sergeant
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(Sgt.) Carrie Ray, a deputy jailer employed at all relevant times at the Kenton 

County Detention Center. Before discussing the substance of her testimony,

however, some context is necessary, starting with the facts underlying the incident 

that led to Hernandez being charged with second-degree assault.

On July 24, 2019, Hernandez was an inmate at the Kenton County 

Detention Center. Inmates from Hernandez’s pod at the detention center were 

outside of their cells ordering from the commissary cart. During this time, Deputy 

Jailer Jennings noticed inmate Trevor Scott trying to pass contraband (what was 

believed to be marijuana) to another inmate. Jennings confiscated the contraband 

and revoked the inmates’ access to the commissary. Shortly thereafter, while 

Jennings and another deputy, Deputy Brown, were ascertaining the nature of the 

contraband and reviewing video footage to determine which inmates were involved

with it, Hernandez and another inmate, Beyersdorfer, attacked Scott. 

The attack was captured on video from the pod’s surveillance camera 

and Jennings’ and Brown’s body cameras. The surveillance camera footage 

depicts Hernandez and Beyersdorfer approaching Scott, pushing him to the ground, 

and kicking and striking him in full view of approximately nine other inmates

witnessing the attack. Seconds later, five deputy jailers enter the pod and stop the 

attack, and Hernandez is handcuffed. The body cameras depict Jennings’ and 

Brown’s responses to the attack. The door to the pod is opened; there is shouting 
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from the inmates; Hernandez is standing over Scott, striking at him; Brown 

commands Hernandez to get on the ground; Hernandez strikes Scott again; Brown 

again commands Hernandez to get on the ground; Jennings repeatedly shouts that 

Hernandez had a weapon and had dropped it; and Brown puts Hernandez on the 

ground and places him in handcuffs.

To be clear, there is no dispute that Hernandez attacked Scott with a 

weapon during this incident. It was a shank fashioned from metal wire that 

apparently came from the head of a mop. And, as depicted in several post-incident 

photographs, it was strong and sharp enough to penetrate Scott’s jumpsuit and 

thermal undergarments and inflict several superficial puncture wounds to the left 

side of Scott’s back and arm.

As indicated, Hernandez was later charged with assault in the second 

degree, a class C felony offense that requires a five-to-ten-year term of 

imprisonment.1 During the guilt phase of his trial, one of the witnesses who 

provided testimony was Sgt. Ray. Apart from detailing how she responded to and 

documented the incident, Ray testified that as a watch commander at the detention 

center, it was generally her duty to ensure the safety of both the inmates and the 

deputies; and, that while it was common to have fights break out in the detention 

center, fights involving weapons were uncommon.

 

1

See KRS 532.020(1)(b).
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During its closing arguments in the guilt phase, the Commonwealth 

reflected upon Sgt. Ray’s testimony, stating in relevant part:

Ladies and gentlemen, you heard Sgt. Ray. Fights at the 

jail happen all the time, they’re not that big a deal. But it 

gets very serious very quickly when people start using 

homemade shanks like this. This is dangerous, and this 

time, yes, Trevor Scott may be fine. But this item 

could’ve done a lot worse, and we can’t let this go 

unpunished.

Following deliberations, the jury found Hernandez guilty of assault in 

the second degree. Afterward, the trial entered the sentencing phase. And, during 

its opening remarks, the Commonwealth explained to the jury that they would be 

tasked with considering three overarching factors: first, Hernandez’s conduct; 

second, his parole eligibility and credits; and lastly, 

The third thing I want you to think about, deterrence, is 

that this happened in the Kenton County Detention 

Center. And this crime might not have been all over the 

nightly news, but in the detention center it is a big deal. 

People hear about these incidents, they’re aware. You 

saw in the video, obviously there were a bunch of 

inmates that witnessed this. There were a bunch of 

corrections officers that witnessed this. Those people 

talk. People are aware of what happened. Deterring 

future incidents at the Kenton Detention Center is a 

legitimate reason for punishment. 

Following the opening remarks, there was a bench conference. There, 

Hernandez’s counsel raised the issue that is currently the focus of this appeal:

DEFENSE: [The Commonwealth] wants to put on a 

witness to say that it’ll deter the community. There’s 
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nothing in the rule, the rules, or the statute that says he 

can put on witnesses to say this’ll be a deterrent in the 

community. I mean, making the argument’s one thing, 

putting on witnesses is something different.

COMMONWEALTH: [KRS] 532.055 says “evidence 

may be offered by the Commonwealth relevant to 

sentencing, including,” so it’s not an exhaustive list. 

And, the case I’ve provided –

COURT: I’ve read it.

COMMONWEALTH: – makes it clear that is relevant, 

and so I think –

COURT: I think [Sgt. Ray] can talk about the 

community that you’re talking about, that if they know 

that some behaviors are seen a certain way, that, so, but 

you gotta keep it really low, really minimum. So that’s 

okay, I had a chance to read that.

In short, Hernandez’s counsel believed it would be improper to permit 

a witness for the Commonwealth (Sgt. Ray) to reiterate what the Commonwealth 

had already related – without objection – through its opening remarks in the 

sentencing phase of the trial.

As indicated, Hernandez’s objection was overruled.2 With that in 

mind, we now turn to the substance of Sgt. Ray’s offending testimony which, all 

told, lasted less than two minutes:

 

2 Hernandez also objected on hearsay grounds to allowing Sgt. Ray to testify that his attack on 

Scott was generally known to inmates and corrections officers in Kenton County. His objection 

was sustained, and Sgt. Ray limited her testimony to what she was aware of. While Hernandez 
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COMMONWEALTH: Sgt. Ray, you mentioned before 

that fights are relatively common, but weapons being 

used in incidents are uncommon. What do you usually 

do when there’s a fight? Is there a procedure, or is it 

taken through the criminal justice system?

RAY: No, usually it’s more a disciplinary issue inside 

the jail. 

COMMONWEALTH: Why do you treat it so differently 

when there’s a weapon involved?

RAY: Because of the capabilities of which it could 

cause, the seriousness of a weapon being introduced into 

the facility or made within the facility.

COMMONWEALTH: Okay. Why is that a big deal to 

you?

RAY: Because if it’s not made to be a big deal, it will 

continue. It will continue and then eventually someone is 

going to be seriously, seriously hurt.

. . .

COMMONWEALTH: You’ve informed other people at 

the Kenton County Detention Center about this case, 

correct?

RAY: Correct.

COMMONWEALTH: And, there were a number of 

inmates who witnessed this incident, correct?

RAY: That’s correct.

 

makes light of his objection in his brief, he does not assert that Sgt. Ray’s testimony ran afoul of 

any hearsay rules.
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COMMONWEALTH: And, they may have shared this 

with other inmates that are there, correct?

RAY: Correct.

COMMONWEALTH: What is your concern if this is 

not punished harshly?

RAY: Again, since the inmate population is aware, that 

if it’s not punished to a harsh extent, then what’s to stop 

them from doing the same? What’s to stop them from 

going from just fist-fighting to escalating to a weapon?

Following its sentencing deliberations, the jury recommended 

Hernandez be imprisoned for a term of seven years and six months, and the trial 

court sentenced him consistently with their recommendation. Now on appeal, 

Hernandez argues the trial court erred by overruling his objection to Sgt. Ray’s 

testimony, as set forth above.

We disagree. As noted, Hernandez has never contested that 

deterrence is a relevant subject for a jury to consider for sentencing purposes, 

particularly in the context of cases involving inmates. See, e.g., Damron v. 

Commonwealth, 687 S.W.2d 138, 140 (Ky. 1985) (approving an argument by the 

Commonwealth asking the jury to severely punish the defendant in order to send a 

message to the jails and prisons as to the consequences of escape, thereby deterring 

future escapes). Indeed, the Kentucky Supreme Court has explained:

[S]o long as the jury is well aware that it is sentencing 

the particular defendant before it – with his or her good 

points and bad – on the crime for which he or she has 
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been convicted, there is no prejudice in the prosecutor 

commenting on the deterrent effect of that sentence.

. . .

[I]t is essentially illogical, at the sentencing phase, to say 

that the prosecutor cannot encourage the jury to impose a 

sentence that speaks to deterrence, as well as punishes 

the specific crime before it. Deterrence is clearly not 

intended for that defendant alone, but rather his sentence 

sends the message to all others so inclined that their 

crimes will be punished, and that a jury made up of local 

citizens will not tolerate such offenses. This is a 

significant part of the benefit of public trials. We 

continue, however, to disapprove of this argument at the 

guilt stage. And even at the penalty phase, the “send a 

message” argument shall be channeled down the narrow 

avenue of deterrence. Any effort by the prosecutor in his 

closing argument to shame jurors or attempt to put 

community pressure on jurors’ decisions is strictly 

prohibited. Prosecutors may not argue that a lighter 

sentence will “send a message” to the community which 

will hold the jurors accountable or in a bad light.

Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009).

Also, Hernandez does not direct this Court to any Kentucky authority 

indicating that evidence supporting a deterrence argument is prohibited.3 To the 

contrary, prosecutors have a duty to confine their arguments – including deterrence 

 

3 To be sure, Kentucky’s truth-in-sentencing statute (i.e., KRS 532.055(2)(a)) lists several

categories of evidence that “may be offered by the Commonwealth relevant to sentencing[,]” and 

“deterrence” is not one of them. However, the list provided by that statute is illustrative, not 

exhaustive. Cornelison v. Commonwealth, 990 S.W.2d 609, 610 (Ky. 1999). It “does not 

exclude other possibly relevant evidence.” Garrison v. Commonwealth, 338 S.W.3d 257, 260 

(Ky. 2011).
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arguments – to the facts in evidence and the reasonable inferences which can be 

derived therefrom. See Caretenders, Inc. v. Commonwealth, 821 S.W.2d 83, 89 

(Ky. 1991) (citing Wallen v. Commonwealth, 657 S.W.2d 232, 234 (Ky. 1983))

(explaining a prosecutor may make arguments related to deterrence based on

grounds or reasons reasonably inferred from the evidence).

Taken at face value, we perceive nothing about Ray’s testimony that 

ventured beyond a narrow avenue of deterrence. To the extent that admitting Sgt. 

Ray’s testimony qualified as error, however, it would be subject to the harmless 

error analysis under RCr4 9.24, which states we “must disregard any error or defect 

in the proceeding that does not affect the substantial rights of the parties.” In 

Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009), it was noted that 

a non-constitutional error is harmless “if the reviewing court can say with fair 

assurance that the judgment was not substantially swayed by the error.” (citing 

Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). 

Here, we cannot say that any weight Sgt. Ray’s relatively brief 

testimony may have lent to the Commonwealth’s deterrence argument resulted in 

anything beyond harmless error or had the potential of rendering the sentencing 

phase of Hernandez’s trial “fundamentally unfair” as Hernandez contends. In sum,

Sgt. Ray stated that, compared to fistfights, fights involving weapons were 

 

4 Kentucky Rule of Criminal Procedure.
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uncommon at the detention center – a point she had already testified about without 

objection during the guilt phase. She stated that, compared to fistfights, fights 

involving weapons had a higher likelihood of leading to serious injuries – a point 

the Commonwealth made without objection during its opening remarks, and which 

was largely an exercise in common sense. She stated that other inmates had 

witnessed the attack – which was apparent from the video footage of the incident 

that was repeatedly presented to the jury during the guilt phase. She stated the 

inmates who had witnessed the attack may have related what they witnessed to 

other inmates – a point reasonably inferable from the evidence and which, again, 

the Commonwealth had already related to the jurors. Lastly, just as the 

Commonwealth had already explained to the jury, Sgt. Ray explained why the use 

and manufacture of weapons in the detention center needed to be met with 

consequences: if not, it would continue and escalate. Lastly, the jury only 

recommended a sentence that was half-way between the minimum and maximum 

required for second-degree assault. 

In other words, Sgt. Ray’s testimony was largely cumulative of what 

the Commonwealth had already presented; and Hernandez’s assertion that the jury 

was substantially swayed the jury’s sentencing recommendation is at best 

speculative. Thus, we find nothing indicative of reversible error in this respect, 

either.
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CONCLUSION

Hernandez has not identified any instance of reversible error. We 

therefore AFFIRM.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Erin Hoffman Yang

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Kristin L. Conder

Assistant Attorney General

Frankfort, Kentucky