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ACTION.RENDERED : MA RCH 26,2020

2018-SC-000565-MR

SALEM NAGDY APPELLANT DATE 5/18/20

V. ON APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITCH PERRY, JUDGE

NOS. 16-CR-3353 & 18-CR-872

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Salem Nagdy was convicted of one count of kidnapping resulting in serious

physical injury, one count of first-degree assault, one count of second-degree

stalking, and one count of eavesdropping. He now appeals his resulting thirtyone-year sentence. After review, we affirm.

I. FACTUAL BACKGROUND

Nagdy is an Egyptian American with dual citizenship. He was bom and

raised in Egypt but moved to the United States in the mid-nineties when he

was in his early twenties. In April 2002 he married his now ex-wife Mary. 1

They had five children together during their fourteen-year marriage. Mary and

Nagdy are both followers of the Islamic faith.

In October 2015 Mary informed Nagdy that she wanted a divorce, and

the divorce was finalized in March 2016. Mary received full custody of the

1 Because the facts of this case involve domestic violence, the victim will be

referred to using a pseudonym.

1children, and Nagdy was granted visitation rights. In addition, the court

entered a protective order against Nagdy requiring him to remain 300 feet away

from Mary for a year. They agreed to communicate about matters concerning

their children through text message.

But Nagdy refused to accept the legitimacy of the divorce decree. Shortly

before October 8, 2016, Mary changed her relationship status on social media

to reflect that she was in a new relationship. Although she blocked Nagdy from

being able to view her profile, he was able to take a screenshot of her changed

relationship status and send it to her via text. The texts that followed the

screenshot became increasingly more threatening. He told her she was still his

wife under Islamic law and that she was an evil, disobedient wife. He also told

her that he prayed to Allah to make her suffer for what she was doing to him

and their children. Maiy testified that she believed the texts were threats, and

she was scared that he would hurt her or someone she loved. Nagdy was also

routinely placing a recording device in Mary ’ s van in an effort to discover with

whom she was in a relationship.

On October 10

th Mary came home from the grocery store at about 8:30

pm. As she was getting the groceries out of the vehicle she looked up and saw

Nagdy come around the side of her van and open the driver ’ s side door. It was

the first time she had seen him since the protective order was entered. Mary

ran into the house and texted him that he needed to leave, or she was going to

call the police. Mary testified he did this to intimidate her; to show her he was

not going to follow the court ’ s orders.

2October 19 th began as a normal day for Maiy. She woke up early, took

her children to school, and went back home to get ready for work. Interstate

64 (1-64) was part of her commute, and when she merged onto 1-64 she heard

something in the back seat of her van. She looked up and saw Nagdy in her

rearview mirror. He yelled at her to keep driving, but instead she pulled the

car over to the shoulder and stopped. She then tried to exit from the driver ’ s

side door, but it would not open though she never had trouble opening the door

before that day, and investigators later confirmed the door would not open from

the inside. When Maiy realized the driver ’ s side door was not going to open,

she tried to get out of the passenger ’ s side door. Nagdy then stunned her with

a flashlight that had a stun gun feature. Maiy testified she felt a sharp pain in

her back and was thereafter unable to move or defend herself. Nagdy

demanded that Maiy tell him with whom she was in a relationship. When

Mary refused, he began beating her over the head with the flashlight.

After beating her about her head, Nagdy drove the van to Norton

Women ’ s and Children ’ s Hospital in Louisville (Norton Hospital). Mary was

conscious when she arrived, but was unable to speak. As a result, the

attending nurses were unable to get a medical history from her. Nagdy lied

and told them they had been in a car accident. However, after the staff

observed a large amount of blood on the interior of the car, but no exterior

damage, they called the police. Investigators from the St. Matthews Police

Department arrived, questioned Nagdy, and arrested him shortly thereafter.

3Meanwhile, because it was clear Mary had endured major head trauma,

a CT scan was conducted. The scan revealed multiple skull fractures and

bleeding on the brain. She was immediately transported to the University of

Louisville Hospital ’ s Trauma Center for surgery. Mary ’ s skull had to be

surgically repaired, and she had ten lacerations on her head and face that

required a total of eighty staples.

At trial Nagdy presented an extreme emotional disturbance (EED)

defense and testified on his own behalf. He stated that it was shameful for a

Muslim man to have another man raise his children, and that when a Muslim

woman divorces her husband and remarries someone else, she must give the

children to their biological father. He admitted that he attacked Maiy, but said

he was not in his right state of mind when it occurred. He further claimed that

he attacked Mary to protect his children. Nagdy also testified that he believed

that his marriage to Maiy under Islamic law was still intact, the divorce decree

notwithstanding.

Finding that Nagdy was not acting under EED, the jury instead found

him guilty of kidnapping resulting in serious physical injury, first-degree

assault, eavesdropping, and second-degree stalking. The jury recommended,

and the court imposed, a twenty-year sentence for kidnapping, ten years for

first-degree assault, and one year for eavesdropping to run consecutively for a

total for thirty-one years. 2

2 The parties agreed to thirty-days time served for the stalking conviction. That

sentencing determination was not submitted to the jury.

4Additional facts are discussed below as necessary.

IL ANALYSIS

Nagdy asserts six alleged errors on appeal to this Court. First, that the

trial court erred by allowing testimony by an investigating officer that Nagdy

said he hated this country. Second, that the trial court erred by allowing

evidence that Nagdy was being investigated by another law enforcement agency

for possible terrorist activity. Third, that the trial court erred by answering a

jury question posed during guilt phase deliberations outside Nagdy ’ s presence

and not in open court on the record. Fourth, that the trial court erred by

allowing thirty photographs of Ma r y ’ s injuries into evidence. Fifth, that the

trial court erred by allowing Nagdy ’ s confession into evidence. Finally, that the

trial court erred by allowing evidence that Nagdy had sought a new wife in

Egypt.

A. The trial court did not err by allowing Nagdy ’ s statement that he

“ hated this country ” into evidence.

Nagdy ’ s first argument is that the trial court erred when it permitted one

of the investigating officers to testify that Nagdy told him that he wanted to

take his wife and children and leave this country and that he hated this

country. 3

Because this alleged error concerns the admission of evidence, we review

the trial court ’ s ruling for abuse of discretion. 4 A trial court abuses its

3 This alleged error was preserved by Nagdy ’ s contemporaneous objection to the

evidence being admitted. Kentucky Rule of Criminal Procedure (RCr) 9.22.

4 Holt v. Commonwealth, 250 S.W.3d 647, 652 (Ky. 2008).

5discretion when its ruling is arbitrary, unreasonable, unfair, or unsupported by

sound legal principles. 5

Nagdy asserts that this evidence was not relevant and that its probative

value was substantially outweighed by its prejudicial effect in violation of KRE 6

403. After reviewing the testimony, we disagree.

Detective Mark Richardson testified that he questioned Nagdy at Norton

Hospital prior to his arrest. The Commonwealth asked if Det. Richardson

heard Nagdy make any statements about living in the United States. Before he

could respond defense counsel objected. Nagdy argued then, as now, that his

statement that he hated this country was not germane to any issue in the case

and was highly prejudicial. The trial court disagreed and found that, because

the case involved conflicts between American and Islamic divorce law, it was

relevant evidence. The court allowed Det. Richardson to answer. Det.

Richardson stated that Nagdy “ made a spontaneous and unprovoked statement

[that] he wanted to take his wife and children and leave this country. Then he

stated that he hated this country and made another statement that he wanted

to leave this country. ”

We hold that the trial court did not abuse its discretion in allowing this

statement into evidence. As previously stated, Nagdy never denied attacking

Maiy and instead focused on proving that his actions were the result of EED.

Thus, his mental state when he attacked Ma r y was the predominant issue the

5 Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).

6 Kentucky Rule of Evidence.

6jury had to determine. His statement that he hated this country made it more

probable, even if only slightly, 7 that his attack on Mary was not the result of a

temporary state of mind so enraged, inflamed, or disturbed that it overcame his

judgment. 8 His expression of his disdain for the country, and perhaps its

divorce laws, was probative.

Further, this testimony clearly did not “ provoke the juiy ’ s instinct to

punish ” as Nagdy argues under Richmond v. Commonwealth. 9 Kidnapping that

results in serious physical injury to the victim carries a minimum punishment

of twenty years, and a maximum punishment of life imprisonment. 10 Here, the

jury recommended the minimum of twenty years. It also recommended

minim um sentences for his first-degree assault and eavesdropping convictions.

And, though the jury recommended that his sentences run consecutively, the

maximum term of years for a consecutive verdict is seventy years 11 and Nagdy

was sentenced to only thirty-one.

B. The trial court did not err by allowing the lead investigator to explain

why he asked Mary questions regarding possible terrorist activity by

Nagdy.

Nagdy argues next that the trial court erred by allowing evidence that Nagdy

was being investigated by another law enforcement agency for possible terrorist

7 Smith v. Commonwealth, 454 S.W.3d 283, 286 (Ky. 2015).

s McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986).

9 534 S.W.3d 228, 232 (Ky. 2017) (holding “ [ejvidence that appeals to the jury ’ s

sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise

may cause a jury to base its decision on something other than the established

propositions in the case is unfairly prejudicial ” ).

10 See Kentucky Revised Statute (KRS) 509.040(2); KRS 532.060(2)(a).

11 KRS 532.1 10(l)(c).

7activity. 12 Again, we review alleged errors regarding the admission of evidence

for abuse of discretion. We hold that Nagdy ’ s counsel opened the door to this

evidence as part of his trial strategy, thus the trial court did not abuse its

discretion.

During the Commonwealth ’ s direct examination of the lead investigator,

Detective Jeff May, he was not asked any questions about Nagdy ’ s possible

terrorist activity. But during the defense ’ s cross-examination of Det. May,

counsel asked about Det. May ’ s interview with Mary after she recovered from

surgery. Specifically, defense counsel inquired as to whether Det. May

remembered asking Mary about whether Nagdy visited any terrorist websites,

whether or not he owned a storage locker, and whether he had a pilot ’ s license

or flight certification. Initially Det. May said he did not remember but

acknowledged that Mary ’ s interview was recorded, and it was certainly possible

that he did.

Defense counsel thereafter requested a side bench. He sought to play

those portions of the interview for Det. May out of the jury ’ s presence to refresh

his memory and obtain a solid “ yes or no ” answer. The trial judge stated he

was not sure where defense counsel was going but allowed it. After the

statement was played for Det. May, the court asked the Commonwealth if it

had any objections. She responded that she believed the defense was bringing

this information up at its own peril, and that she would ask Det. May on re

12 This error was preserved by Nagdy ’ s contemporaneous objection to the

evidence. RCr 9.22.

8direct to explain why he asked Mary those questions. The trial court agreed

that was appropriate.

When the cross-examination resumed, defense counsel asked Det. May if

he remembered asking those questions, and Det. May said that he did. On re

direct the Commonwealth asked Det. May why he asked Maiy those questions.

Det. May began to respond, “ my partner received information after Mr. Nagdy ’ s

arrest from a storage facility manager and he stated that... ” At that point

defense counsel made an objection on hearsay grounds. The trial court

responded:

counsel you invited every bit of this and for the life of

me I have no idea why. He can explain the nature of

the conversation. It ’ s not even being offered for the

truth of the matter asserted. It ’ s just to put into

context whatever you ’ re doing. So, the truth of what

the storage manager said is not in issue in this case.

Neither is terrorism, by the way. I ’ m not sure what ’ s

going on so I ’ m going to let him explain[.]

Thereafter Det. May responded,

During the course of our investigation we received

information that Mr. Nagdy had a storage locker in

Oldham County. That storage locker had been cleaned

out, and the material in it had been placed into a dumpster. The manager found it, was concerned

about it, saw the news story about this incident on the

19th, called the St. Matthews Police Department, and

told us about the box. [My partner] went and

recovered the box, looked at its contents, and we had

some significant concerns that those type of questions

needed to be asked. And ultimately, that information

was passed along to other agencies.

It was not until the defense ’ s closing argument that the reason for this curious

strategy became clear. Counsel argued,

9during Detective May ’ s testimony there were some

questions that came up about a possible link to

terrorism websites, questions about Salem ’ s pilot ’ s

license, things like that. At first Det. May claimed he

didn ’ t remember asking those questions, but once his

recollection was refreshed, he did. Why is that

information important? I ’ ll tell you why it ’ s important.

Because the Commonwealth, in this case, in this

courtroom there is a brown skinned man sitting here

from a middle eastern country. And the

Commonwealth is not going to understand that he was

acting under extreme emotional disturbance that day.

They have to suspect that maybe he ’ s a terrorist

because they can ’ t understand him. He told them

what he did. If he was a terrorist, he would have been

charged.

It is clear that defense counsel solicited this irrelevant testimony to

diminish the credibility of the investigating officers by making them appear

prejudiced towards Muslim citizens of middle eastern origin. Attempting to

hurt the credibility of a witness is a common and often utilized trial strategy.

And, “ [i]n the absence of exceptional circumstances, a defendant is bound by

the trial strategy adopted by his counsel[.] ” 13

As to redirect, the defense opened the door for this evidence to come in.

“ When one party introduces improper evidence, such ‘ opens the door ’ for the

other party to introduce improper evidence in rebuttal whose only claim to

admission is that it explains or rebuts the prior inadmissible evidence. ” 14

We therefore hold that the trial court did not abuse its discretion by

permitting Det. May to explain this portion of his investigation.

13 Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977).

14 Stansbury v. Commonwealth, 454 S.W.3d 293, 300 (Ky. 2015).

10C. The trial court ’ s violation of RCr 9.74 was harmless error.

For his third argument Nagdy asserts that the trial judge answered a

guilt phase deliberation jury question out of Nagdy ’ s presence. Counsel

concedes this issue is unpreserved but has requested palpable error review

under RCr 10.26. This Court may therefore only grant Nagdy ’ s request for a

new trial as a result of this alleged error if it holds that a manifest injustice has

resulted from it. 15

After the jury retired to deliberate during the guilt phase of Nagdy ’ s trial,

it sent the following question to the trial judge: “ was it admissible for the

prosecution to present evidence of previous violent acts the defendant has

committed? ” After consulting with defense counsel and the Commonwealth,

the court sent back: “ the Court cannot answer this inquiry. ” While there is no

video record of this exchange, both parties agree Nagdy was not present during

the discussion.

The statute at issue, RCr 9.74, commands that:

[n]o information requested by the jury or any juror

after the jury has retired for deliberation shall be given

except in open court in the presence of the defendant

(unless the defendant is being tried in absentia) and

the entire jury, and in the presence of or after

reasonable notice to counsel for the parties.

Thus, the trial court clearly violated RCr 9.74 by failing to ensure Nagdy was

present for the discussion and subsequent answer. However, as the trial court

15 “ A palpable error which affects the substantial rights of a party may be

considered...by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that

manifest injustice has resulted from the error. ” RCr 10.26.

11was unable to answer the jury ’ s question and correctly responded as such, we

cannot hold that a manifest injustice resulted. Accordingly, we decline Nagdy ’ s

request for a new trial because of this error, which we hold was harmless.

D. The trial court did not err by admitting thirty photographs comprising

the Commonwealth ’ s collective exhibit four.

Nagdy next argues that he is entitled to a new trial because the trial court

erred by admitting thirty photographs of Mary ’ s injuries after her cranial

surgery. 16

The sexual assault and domestic violence nurse examiner that took

photographs of Ma r

y following her surgery testified at trial. During her

testimony the Commonwealth sought to introduce thirty photographs of Ma r y ’ s

injuries taken by the nurse. Twenty-seven of the photographs show the ten

separate stapled lacerations to Mary ’ s shaved head, as well as her ear which

had gauze surgically attached to it. The remaining three photographs showed

the roughly lemon-sized bruise on Ma r y ’ s back caused by the stun gun. The

nurse explained that when taking forensic photographs it is her practice to

take three photographs of an injury: one orientation photograph so that the

viewer can identify where on the victim ’ s body the injury is located; one close

up photograph of the injury; and one close up photograph with a scale, in this

case a ruler. Some of the injuries, such as the cut on Mary ’ s forehead and the

16 This alleged error was preserved by defense counsel ’ s contemporaneous

objection to the evidence. RCr9.22. Nagdy also argues for the first time that

Commonwealth ’ s collective exhibit two was incorrectly admitted. Commonwealth ’ s

exhibit two was ten pictures of Mary when she first arrived at Norton Hospital prior to

surgery. As he made no objections at trial, and in fact went so far as to distinguish

exhibit two from exhibit four in terms of admissibility, we decline to address the

argument.

12largest of the stapled wounds are depicted with three separated photographs in

this way. But, as three photographs of each of the eleven injuries to her head

and ear does not equal twenty-seven photographs total, not every injury was

demonstrated by using three separate photographs.

Prior to these photographs being discussed by the nurse, defense counsel

objected to their admission. He argued under Hall v. Commonwealth 17 that

photographs were prejudicial because they went above and beyond what was

necessary to prove the injury. The trial court allowed the photographs to be

introduced based on its finding that:

there are not duplicate photographs, there ’ s just

photographs of the same thing with different frames of

reference. I don ’ t see a problem with that. I

understand [the defense ’ s] request. It ’ s not unlike an

autopsy photo that goes too far, it can go too far, but

in my view this does not.

In his argument to this Court Nagdy again argues under Hall that these

photographs were admitted in error. We address this argument by noting first

that Hall mandated our trial courts to first conduct a KRE 403 balancing test

before ruling on the admissibility of an arguably gruesome photograph. 18 In

other words, a trial court must assess the probative value of each photograph

against its possible prejudicial effect and determine whether its possible

prejudicial effect is substantially outweighed by its probative value. 19

17 468 S.W.3d 814 (Ky. 2015).

18 Id at 823.

19 KRE 403.

13To that end, we start with the well-established rule that photographs of a

gruesome or graphic nature are not rendered inadmissible solely because of

their graphic nature. 20 “ And to keep out relevant yet gruesome evidence, the

gruesomeness must be such that it creates substantial undue prejudice or

other harmful consequences that outweigh the probativeness of the

evidence. ” 21 Finally,

photos showing the nature of the victim ’ s injuries and

the circumstances surrounding the commission of the

crime will rarely be deemed inadmissible. The

Commonwealth has the burden of proving a crime

beyond a reasonable doubt. Consequently only

minimal probativeness to a fact of consequence is

necessary for evidence to be relevant and thus

generally admissible unless excluded by Constitution

(federal or state), statute, or other evidentiary rule. 22

In this case, the photographs of Mary ’ s injuries most certainly had

probative value. When there is a wound to one ’ s head, if covered with hair,

injuries are difficult to discern. The first set of photographs, Commonwealth ’ s

exhibit two, showed Mary ’ s bloody head with her long hair still in place. The

second set of photographs, Commonwealth ’ s exhibit four, showed her wounds

more clearly, but neatly stapled and not gruesome in any way. In order to

convict Nagdy of both kidnapping resulting in serious physical injury and firstdegree assault, the Commonwealth had to prove beyond a reasonable doubt

that Ma r y suffered serious physical injury in accordance with KRS

20 Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992).

21 Ragland v. Commonwealth, 476 S.W.3d 236, 248 (Ky. 2015) (internal

quotations omitted)

.

22 Easterling v. Commonwealth, 580 S.W.3d 496, 509 (Ky. 2019) (internal cite

and quotations omitted).

14500.080(15). 23 This means a “ physical injury which create[d] a substantial risk

of death, or which cause[d] serious and prolonged disfigurement, prolonged

impairment of health, or prolonged loss or impairment of the function of any

bodily organ. ” This is not a low water mark. These photographs helped the

Commonwealth demonstrate the full extent of Mary ’ s injuries. Thus, their

probative value was distinctly high.

On the other side of the KRE 403 coin, the photographs, while not

particularly pleasant to look at, are in no way in the “ upper echelon of

gruesome photos ” 24 such as the ones at issue in Hall. Again, twenty-seven of

the photographs depict clean, stapled wounds post-surgery on a live person,

not mangled corpses at the scene of a double murder in addition to graphic

autopsy photos. 25 Consequently, any prejudicial effect they may have had did

not substantially outweigh their probative value.

We therefore hold that the trial court did not err in admitting the

photographs and decline Nagdy ’ s request for a new trial based on this error.

E. The trial court did not err by denying Nagdy ’ s motion to suppress.

Nadgy ’ s next assertion is that the trial court erred by failing to grant his

motion to suppress recordings of him made by Det. May.

At the suppression hearing Det. May testified that he made three audio

recordings the day of the incident. He made the first when he arrived at Norton

Hospital while observing Nagdy ’ s interactions with hospital staff. He did not

23 See KRS 509.040(2) and KRS 508.010, respectively.

24 Hall, 468 S.W.3d at 827.

23 See id. at 821-22.

15speak to Nagdy at that time. The second was made a short time later when

Det. May questioned Nagdy in his hospital room. Det. May said that his initial

goal was to figure out what happened because Mary was still unable to speak.

Nagdy eventually told Det. May that he and Mary got into an argument and he

struck her. At that point Det. May advised him of his rights and continued his

questioning. Based on that questioning, which lasted between ten and fifteen

minutes, Nagdy was arrested. After he was medically released with no injury,

he was immediately taken to the St. Matthew ’ s Police Station, mirandized, and

questioned again. That interrogation lasted about an hour. During both the

initial questioning and the interrogation Nagdy indicated that he understood

his rights and did not invoke his right to remain silent or his right to an

attorney.

Dr. Christopher Krieg was the emergency room physician that treated

Nagdy that day. Dr. Krieg testified that when Nagdy came in he was

screaming, crying, breathing fast, sweating, and was covered in blood. He was

abrasive and uncooperative with the staff and refused to answer questions they

were asking to try and determine what happened and if he was injured. He

started getting physically aggressive and was trying to leave. Dr. Krieg testified

he was growing more concerned about the safety of himself and his staff. Dr.

Krieg ordered that Nagdy be given 2 mg of Ativan and 5 mg of Geodon. Nagdy

now argues that the effects of the medicines prevented his statements to Det.

16May from being freely, knowingly, and voluntarily given in violation of Miranda

v. Arizona. 26

Dr. Krieg testified that the two medicines are not sedatives. Rather,

Ativan is an anxiolytic, 27 and Geodon is an antipsychotic that is also used to

treat bipolar disorder. He stated that 2 mg of Ativan is considered a low dose,

and that the most common side effects associated with 2-4 mg of Ativan

are sleepiness, decreased anxiety, slowed breathing, and, rarely, seizures. He

agreed that at high doses it can cause memory loss, but he had never seen it

happen to a patient because his practice only involves administering low doses.

The Geodon was also administered at a low dose, as 5 mg is a quarter of the

maximum allowable dosage. The most common side effects Dr. Krieger had

observed from Geodon were tardive dyskinesia, i.e. twitching facial muscles,

calmness, and sleepiness. He had never seen memory impairment occur with

someone given Geodon. Further, many people take low doses of one or both

medications daily and live normal lives.

More importantly, Dr. Krieg testified that after Nagdy was given the drugs

he became calm but was still alert and began cooperating with the medical

examination. This was his intended effect. Det. May similarly testified that

Nagdy did not appear to be under the influence of anything. Nagdy seemed to

understand Det. May ’ s questions, and responded with coherent, logical, and

26 384 U.S. 436 (1966).

27 A drug that relieves anxiety. https://www.merriamwebster.com/dictionary/axiolytic (last visited March 7, 2020).

17appropriate responses. Additionally, his answers during both rounds of

questioning were consistent with one another.

Nagdy testified that his recollection of Dr. Krieg was vague, that he did

not remember seeing Det. May at any time prior to the probable cause hearing.

Nagdy testified that he did not remember being at the St. Matthews Police

Station, and that after he was injected with the medicines the next thing he

remembered is waking up in jail.

Based on the foregoing, as well as his review of the three recordings

themselves, the trial judge denied Nagdy ’ s motion to suppress. Nagdy requests

that this Court hold that this was done in error and reverse his conviction.

We review a trial court ’ s ruling on a motion to suppress evidence under a

two-step analysis. 28 “ We review the trial court's factual findings for clear error,

and deem conclusive the trial court's factual findings if supported by

substantial evidence. The trial court's application of the law to the facts we

review de novo. ” 29

For whatever reason, we are without the benefit of a written order on this

issue. 30 We will therefore review the trial court ’ s oral ruling. Prior to jury

selection the first day of trial the Commonwealth requested a ruling on the

suppression motion. The trial court stated:

I ’ m going to respectfully deny the motion. I listened to

all of the statements. I believe Mr. Nagdy ’ s comments

28 Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011).

29 Id.

30 The trial court indicated after its oral ruling that it would prepare an order.

We have no reason to doubt that said order was prepared, but it is absent from the

record before us.

18at the hospital, the first one was not a custodial

interrogation, I ’ m not even sure [defense counsel] was

asking me to suppress that one. But the second two,

once law enforcement was on notice of a possible

crime [Nagdy] was mirandized and I believe he freely,

knowingly, and voluntarily waived his Fourth

Amendment rights there. And certainly at the station

house as well. So I ’ m going to respectfully deny the

motion to suppress[.]

We find no error in this ruling. The trial court was correct that the first

recording was not a custodial interrogation. The recording was made by Det.

May while he was merely observing Nagdy interact with hospital staff. Nagdy

was not in custody and Det. May did not question him at that time. 31

Regarding the second and third recordings, Nagdy was advised of his rights

after he stated that he struck Mary. Additionally, Dr. Krieg testified that the

drugs he prescribed would not cause memory loss at the dosage levels he

administered to Nagdy. And after Nagdy was administered those drugs he

became calm, but alert. Dr. Krieg did not witness any side effects that

concerned him. Det. May testified similarly that Nagdy ’ s demeanor did not

cause him to believe he was under the influence of anything, and in fact did

not even know he was given anything until the day before the suppression

hearing. This evidence is more than sufficient to support the trial court ’ s

determination that Nagdy gave his statements freely, knowingly, and

voluntarily.

F. The trial court did not err by allowing evidence that Nagdy sought an

additional wife in Egypt.

31 Jackson v. Commonwealth, 468 S.W.3d 874, 876 (Ky. App. 2014) ( “ A

custodial interrogation means questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in

any significant way. ” ).

19Nagdy ’ s final argument is that the trial court committed reversible error

when it allowed evidence that Nagdy sought additional wives in Egypt. He

asserts that this was impermissible bad acts evidence in violation of KRE

404(b). He concedes that this error was not preserved, and requests palpable

error review under RCr 10.26. As previously stated, this Court may only

reverse a conviction under palpable error review if a manifest injustice has

resulted from the alleged error. 32

The subject of Nagdy seeking an additional wife was not broached by the

Commonwealth at any time during its direct examination of Mary. It was in

fact the defense that opened the door to that information. During its crossexamination of Mary, the defense brought up a written “ contract ” between

Ma r y and Salem from 2014. In that agreement, Mary agreed to not get an

Islamic divorce if Nagdy agreed to a legal divorce. On re-direct the

Commonwealth had Mary read the terms of the agreement out loud. One of

the terms was that “ Salem will not go online to pursue other wives. Salem will

go overseas to Egypt to pursue a wife that will not create fitnah, or jealously,

between her and Sundus 33

. ” The defense did not object. The reason for the

defense ’ s lack of objection became clear during its later direct examination of

Nagdy. Again, the defense brought up the agreement and Nagdy himself

testified that the contract was Mary ’ s idea and that Mary urged him to go to

Egypt in 2015 and find a new wife that would remain in Egypt.

32 RCr 10.26.

33 Mary ’ s nickname.

20Thus, not only did the defense open the door to the information

contained in the “ contract ” between Mary and Nagdy, but it also later used that

information as part of its trial strategy. As previously discussed, defendants

are bound by the trial strategy of their counsel. 34 We therefore hold that the

trial court did not err by allowing evidence that their contract addressed Nagdy

seeking an Egyptian wife.

III. CONCLUSION

Based on the foregoing, we affirm.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Euva D. May

Assistant Appellate Defender

Louisville Metro Public Defender ’ s Office

Leo G. Smith

Louisville Metro Public Defender

Louisville Metro Public Defender ’ s Office

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

Jeffrey A. Cross

Assistant Attorney General

34 Salisbury, 556 S.W.2d at 927.

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