RENDITION: JULY 9, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2018-SC-000402-MR

TERRENCE DOWNS APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE ANGELA MCCORMICK BISIG, JUDGE 

NOS. 16-CR-003370 & 18-CR-001693

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VANMETER

REVERSING AND REMANDING

Terrence Downs appeals as a matter of right1 from his twenty-five-year 

sentence for convictions of first-degree manslaughter, tampering with physical 

evidence, possession of a handgun by a convicted felon, and second-degree 

persistent felony offender (PFO2). Because Downs was deprived of his right to 

counsel at a critical stage of the proceedings, we reverse his judgment of 

conviction and sentence and remand for further proceedings consistent with 

this Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND.

On Saturday, December 10, 2016, Downs shot and killed Ronnie Reed 

inside the kitchen of Brandy Taul’s apartment, located in the Guardian Court 

apartment complex in Louisville. Brandy, her roommate Juanita Downs,

2 and 

 

1 Ky. Const. § 110(2)(b).

2 No relation to Terrence Downs.
2

Juanita’s sister Jordyn Hinkle, witnessed the shooting. The shooting occurred 

shortly after Jordyn telephoned Downs, who was a good friend of hers, and told 

him that she was upset because Reed had put his hands on her in the parking 

lot of the apartment complex where Jordyn also resided. At Jordyn’s request, 

Downs drove over to her apartment to talk with her.3

Downs believed Jordyn but having known Reed since middle school, 

wanted to talk with him about what happened. Downs and Jordyn went to

Brandy’s apartment looking for Reed but he was not there. Downs spoke with 

the people there and tried to get a sense of what had happened. They informed 

Downs that Reed was on his way back to Brandy’s apartment. At this point, 

Jordyn called Reed, and Downs spoke with him. Reed denied putting his 

hands on Jordyn and said he was coming over. 

While they waited, Downs and Jordyn went to the store. Upon returning, 

they encountered Reed in the apartment parking lot. Downs saw Reed was 

holding a .45 handgun with an extended clip. Jordyn went upstairs to 

Brandy’s apartment while Downs and Reed remained outside. Downs testified 

that Reed denied responsibility and became frustrated and wanted to talk to 

Jordyn. Reed headed upstairs to the apartment, Downs followed. Juanita, 

who watched their encounter from a window at the landing outside the 

apartment, testified that Downs and Reed spoke cordially, with no indication of 

a conflict.

 

3 Evidently, the conflict between Reed and Jordyn arose because Jordyn learned 

that Reed was also having an intimate relationship with her sister, Juanita.
3

In the apartment, Jordyn and Juanita were in the small kitchen, sitting 

on the countertop. Reed entered the kitchen first, with Downs behind him. At 

this point, the evidence is conflicting as to whether Reed was waving the 

handgun around with his hand on the trigger threatening people OR whether 

Reed simply set the gun on the counter and turned his back to it while civilly 

speaking with Juanita and Jordyn. Regardless, Downs grabbed the gun and 

struck Reed in the head with it from behind. Reed staggered, turned to face 

Downs, and Downs shot him. Downs then fled the scene; he testified that he 

dropped the gun in the parking lot as he ran away. Reed was taken to the 

hospital, where he died that morning. Downs was arrested two days later. The 

handgun was never found.

A grand jury indicted Downs for murder, robbery first-degree, possession 

of a handgun by a convicted felon, wanton endangerment first-degree, 

tampering with physical evidence, and PFO2. The trial court dismissed the 

robbery first-degree and wanton endangerment first-degree counts and severed 

the handgun-possession count. After the guilt phase of trial, a jury convicted 

Downs of manslaughter first-degree and tampering with physical evidence. At 

that point, the parties agreed to the disposition of the other offenses and the 

penalty. Downs pled guilty to possession of a handgun by a convicted felon, 

being a PFO2, and to the tampering with physical evidence charge for which he 

already had been convicted. Pursuant to the parties’ agreement, Downs waived 

sentencing and the trial court imposed twenty-five years’ imprisonment with 

Downs reserving his right to appeal the manslaughter first-degree conviction.
4

II. ANALYSIS.

a. Downs was denied the right to counsel at a critical stage of the 

proceedings.

Downs claims he was denied the right to conflict-free counsel at a critical 

stage of the proceedings — during an in-chambers hearing the trial court 

conducted on the fitness and ability of his private attorney, Brendan McLeod, 

to try the case. Kentucky case law is settled that “a complete absence of 

counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment 

violation warranting reversal of a conviction, a sentence, or both, as applicable, 

without analysis for prejudice or harmless error.” Allen v. Commonwealth, 410 

S.W.3d 125, 144 (Ky. 2013).

On the afternoon voir dire was scheduled to commence, the 

Commonwealth informed the court that it had an issue to address and asked 

to approach the bench. At the bench conference, Dorislee Gilbert, an appellate 

attorney with the Jefferson County Commonwealth’s Attorney’s office, entered a 

limited appearance to report concerns about the fitness of Downs’s attorney, 

McLeod, to try the case. She told the court:

Our point here, Judge, is not to accuse Mr. McLeod, or to say bad 

things about him. Honestly, if the things that I am hearing about 

him are true, I have concerns about him personally, but today the 

purpose of this hearing and the reason we’re putting this stuff on 

the record, is because there is a man who is facing a prison 

sentence who has a Sixth Amendment right to effective counsel, 

and we are aware of something, and as prosecutors it is our 

obligation to help secure his rights.

Gilbert informed the court that she had witnesses, including potentially 

another Jefferson Circuit Court Judge, who would testify as to their concerns 
5

about McLeod’s fitness to try the case. The trial judge said that Jefferson 

Circuit Court Judge Chauvin had already approached her out of court, off the 

record, expressing his observation that McLeod’s thinking sounded circular or 

disjointed during a bond arraignment hearing earlier that day, but that he did 

not plan on reporting McLeod to a lawyer agency or anything of that nature. 

The trial judge stated that in observing McLeod that day, she had not perceived 

any physical manifestation of him being under the influence of anything. 

When the court indicated that it would hear from the Commonwealth’s 

witnesses, McLeod requested that it do so in chambers. 

Downs remained in the courtroom while the attorneys retreated to 

chambers. In chambers, the court heard from two assistant Commonwealth’s 

Attorneys: Justin Janes, who had appeared in Judge Chauvin’s courtroom with 

McLeod for a bond arraignment hearing earlier that day, and Scott 

Drabenstadt, who had interacted with McLeod in the hallway that day. Janes 

said that after sitting through the arraignment, he was concerned about 

McLeod’s health and his ability to work, since McLeod did not seem like 

himself. After the arraignment, Judge Chauvin asked Janes if McLeod was 

going to try a case that day, then stated “that man should not be operating 

heavy machinery.” Drabenstadt told the court that he was friends with 

McLeod, had known him for many years and had encountered McLeod in the 

hallway earlier, and that McLeod was not himself — he was not speaking or 

walking in his usual manner — and Drabenstadt wondered if something was 

neurologically wrong with him like maybe he had suffered a stroke. 
6

The trial court commented that it had not seen anything inappropriate 

from McLeod since starting the case. The court then questioned McLeod, 

inquiring as to whether he was under the influence of any medication, or had a 

health issue, or a personal situation affecting him that would impair his ability 

to adequately represent Downs that day. McLeod said that nothing in his 

personal life affected his ability to try the case. He further denied having a

health issue or being under the influence of medication, other than taking 

Sudafed for postnasal drip. He told the court he was “naturally hyper” but that 

he had stopped taking Valium a month ago. He pointed to the prosecutors’ 

aggressive attitude toward Downs and confrontational proceedings as a source 

of agitation in this case. The trial court acknowledged that the case had been 

acrimonious.

The Commonwealth then asked the court to make a ruling on whether 

McLeod was fit to proceed that day. The Commonwealth further requested that 

in the event the court determined he was fit to proceed, the court advise Downs 

of the general concerns raised so that he would be aware and could raise any 

observations or concerns he had with McLeod’s representation. McLeod 

protested on grounds that informing Downs of the allegations amounted to 

corroding his relationship with his client. 

The trial court ruled that McLeod was fit to proceed, finding as follows:

To take the very serious step of saying that a lawyer is not fit to 

represent his client I believe that I would need more information 

than what has been presented to me. I haven’t had anyone say 

that there’s been any smell, I haven’t seen any physical 

manifestation, like I said, I do not doubt, and I wholeheartedly 

believe these allegations are being made in good faith and are not 
7

being made for tactical advantage in this underlying case. I’ve 

been on the bench 16 years and I’ve never had anyone raise an 

issue like this. I don’t think the Commonwealth would start today 

just doing this to gain an advantage in this case. But I just don’t 

see enough evidence to remove Mr. McLeod from representing his 

client.

While noting the importance of a defendant’s right to counsel of his 

choice, the court refused to inform Downs of the issues raised and the court’s 

ruling, stating that it had observed Downs and McLeod appropriately 

interacting throughout the proceeding and that Downs had not asked the court 

to intervene, or looked to the court as though there was a problem. The court 

believed that to question Downs about McLeod’s fitness at this point would 

prejudice their relationship, which the court declined to do without more 

evidence of inappropriate behavior from McLeod. The court said that it would 

continue to monitor the situation. 

McLeod asked to break for the day because he felt upset and under 

attack. The court dismissed the jury for the night. The next morning, McLeod 

was thirty minutes late to court and the trial court reprimanded him for his 

tardiness, informing him he would be fined every time he was late going 

forward. The court then addressed Downs in open court, checking in with him 

to make sure he wished to proceed with McLeod as his counsel, and that he 

was comfortable with McLeod as his counsel. Downs responded yes, and the 

court asked him if he had any questions. Downs said, “I mean I didn’t really 

get the full extent of what was going on but he told me a little bit of it . . . I 

mean, I don’t know.” The court clarified that Downs was comfortable going 
8

forward with McLeod as his attorney, and that they were working together in 

his defense, and Downs said yes.

On appeal, Downs’s DPA-appointed counsel argues that Downs had the 

right to be represented by conflict-free counsel and to have been present during 

the court’s in-chambers hearing or, at the very least, should have been 

informed of the nature of the inquiry and the court’s findings. RCr4 8.28(1) 

states, in part: “The defendant shall be present at the arraignment, at every 

critical stage of the trial including the empaneling of the jury and the return of 

the verdict, and at the imposition of the sentence.” Indeed, “[i]t is well-settled 

that a criminal defendant has a right to be represented by counsel that extends 

beyond the actual trial to every critical stage of the proceedings.” Allen, 410 

S.W.3d at 138 (citations omitted).

[A]n analysis of a critical stage necessarily involves a retrospective 

inquiry as to the nature and consequences of each step in the 

proceedings. Particular attention must be given to how counsel 

would have benefited the defendant at these moments. A portion 

of a criminal proceeding is a critical stage if a reasonable likelihood 

exists that the defendant was prejudiced by the absence of 

counsel.

Id. at 139 (internal quotations and citations omitted).

Downs asserts that the in-chambers hearing on McLeod’s fitness to try 

the case was a critical stage of the proceedings and that he was prejudiced by 

not having conflict-free counsel represent him. He points out that the hearing 

turned on contested facts, rather than mere legal arguments, which he

 

4 Kentucky Rules of Criminal Procedure. 
9

distinguishes from situations involving only legal arguments between the court 

and counsel, or other minimal events for which the defendant’s presence 

makes no difference. See, e.g., Tamme v. Commonwealth, 973 S.W.2d 13, 38

(Ky. 1998) (holding that the defendant’s absence during discussion of jury 

instructions was not reversible error, as such discussion involved only legal 

arguments); Parrish v. Commonwealth, 472 S.W.2d 69, 71 (Ky. 1971) (holding 

that the defendant’s absence from a pretrial motion for a continuance was not 

reversible error). 

Downs emphasizes that no one in chambers was representing his 

interests: McLeod was acting as a fact witness for the subject matter of the 

hearing and not in his capacity as Downs’s attorney. Downs argues that 

McLeod’s objection to the court informing him of the inquiry reveals the 

inherent conflict: McLeod was seeking to preserve his attorney-client 

relationship with Downs, rather than serving as an advocate for Downs’s 

interests. In support, Downs directs us to Zapata v. Commonwealth, wherein 

this Court held on direct appeal that the defendant was deprived of his right to 

conflict-free counsel during a critical stage in the proceedings when his counsel 

was placed in the untenable position of defending her own interests which were 

adverse to her client’s. 516 S.W.3d 799, 803 (Ky. 2017). In Zapata, the 

defendant moved to withdraw his plea based on his counsel’s alleged deception. 

The defendant’s counsel admitted the motion put her in an “awkward position” 

and this Court agreed, holding that “to argue in favor of [her] client’s motion 

would require admitting serious ethical violations and possibly subject [her] to 
10

liability for malpractice; on the other hand, any contention by counsel that 

defendant’s allegations were not true would . . . contradict [her] client.” Id.

(citations omitted). 

In response, the Commonwealth argues that the in-chambers hearing 

was a procedural conference unrelated to the issues at trial and therefore did 

not require Downs’s presence. The Commonwealth cites no Kentucky cases in 

support of its argument and instead directs us to two cases from the Tenth and 

Eleventh Circuits in which the federal courts held that the defendant’s 

presence was not required. In the first case, United States v. Oles, the Court 

ruled that the defendants had no right to be present at a pretrial hearing, held 

two weeks before the jury trial, during which prospective counsel declined to 

enter an appearance and the court thus denied the appointed counsel’s motion 

to withdraw. 994 F.2d 1519, 1525 (10th Cir. 1993). Specifically, the Oles

court held that “the preliminary hearing was not a critical stage of trial, but 

instead would more accurately be classified as an administrative conference 

unrelated to any issues at trial. . . . appellants failed to establish that their 

presence at this hearing would contribute to the fairness of the overall 

proceeding.” Id. Downs distinguishes Oles on grounds that the pretrial 

proceeding in that case did not affect the overall fairness of the proceedings as 

it did here where the health and fitness of defense counsel was questioned as 

voir dire commenced.

In the second case, United States v. Bowe, the Court cited Oles in 

applying the principle that procedural conferences unrelated to the issues at 
11

trial do not require a defendant’s presence. 221 F.3d 1183, 1189 (11th Cir. 

2000); see also Small v. Endicott, 998 F.2d 411, 414–15 (7th Cir. 1993) (holding 

that defendant had no right to attend scheduling hearing where court made no 

adverse ruling). In Bowe, an attorney on the defense team was arrested prior 

to trial and entered a drug rehabilitation program. Id. at 1188. Subsequently, 

the defense attorneys requested a continuance until that attorney completed 

rehab, which the trial court denied after holding a status conference. Id. The 

appellate court held that the defendant had no due process right to attend the 

status conference as it was not formal, the defendant’s presence would not 

have contributed to the discussion, the defendant did not claim to have a more 

extensive knowledge of counsel’s situation than those who attended, and the 

defendant’s request for a continuance was communicated to the court through 

his attorneys. Id. at 1189. Downs distinguishes Bowe, as the unavailable 

attorney in that case was part of a defense team, i.e., the client had two other 

attorneys well-versed in the case representing him, whereas McLeod was 

Downs’s only attorney. Moreover, Downs points out that the conference in 

Bowe occurred at least a month before trial commenced, not the day of voir 

dire, and the court had record of the defendant’s wishes as expressed in an 

affidavit from Bowe explaining that he knew about the attorney’s arrest and 

rehabilitation and wanted a continuance so that attorney could remain part of 

his defense team. Unlike the defendant in Bowe, Downs had no notice of the 

concerns raised about McLeod’s fitness to try the case, and his acquiescence to 
12

McLeod’s continued representation of him was made without this available 

information. 

As this Court has noted, what constitutes a “critical stage” for Sixth 

Amendment purposes includes those circumstances in which “the accused 

must find himself confronted, just as at trial, by the procedural system, or by 

his expert adversary, or by both.” Cain v. Abramson, 220 S.W.3d 276, 280 (Ky. 

2007) (internal quotations and citations omitted). In Cain, we held that “the 

psychiatric evaluation, ordered by the court upon notice by Cain of his intent 

to assert mental illness as a defense to the crimes he is charged with 

committing, is not a ‘critical stage’ in the procedural system giving rise to a 

constitutional necessity for the presence of counsel.” Id. at 281. We reasoned

that our holding “balance[ed] the constitutional rights of the accused to have 

counsel present at ‘critical stages’ of the procedural system and to be free from 

compulsion to incriminate himself with the right of the public to refute 

disingenuous or inadequate claims of mental disease.” Id. at 282. 

Here, the trial court’s in-chambers hearing failed to include the person 

most affected by the issues raised — Downs — who was on trial for murder. 

Whether Downs had a fit attorney representing him at trial is of utmost 

importance to the fairness of his trial. While Downs himself was not placed in 

an adversarial situation without counsel, he was excluded from participating in 

the procedural system during a fact-based inquiry that bore directly on his 

counsel’s physical and mental ability to represent him competently and 

effectively. At the very least, Downs should have been informed of the 
13

allegations against McLeod and given the opportunity to retain independent 

counsel to advocate his interests. 

Put simply, Downs’s right to conflict-free counsel outweighed McLeod’s 

desire to keep his attorney-client relationship intact and outweighed any 

potential inconveniences suffered by delaying the trial to conduct a proper 

hearing on the issues raised. While we commend the trial court’s effort to 

investigate the Commonwealth’s concerns in a confidential and professional 

manner, the court’s decision not to inform Downs of the Commonwealth’s 

allegations against McLeod and not offer him the opportunity to retain 

independent counsel to represent his interests was error of constitutional 

magnitude and mandates reversal. 

We will now address any remaining claims of error that may arise again 

on remand.

b. First-Degree Manslaughter Instruction.

Downs asserts that the first-degree manslaughter instruction 

erroneously required the jury to find that he was acting under extreme 

emotional disturbance (EED). As this claim of error is unpreserved, it is 

subject to palpable error review only pursuant to RCr 10.26:

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. 

“Palpable error relief is available under RCr 10.26 only upon a determination 

that manifest injustice has resulted from the error. ‘Manifest injustice’ is ‘error 
14

[that] so seriously affect[s] the fairness, integrity, or public reputation of the 

proceeding as to be ‘shocking or jurisprudentially intolerable.’” Davidson v.

Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v. 

Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).

The trial court instructed the jury on first-degree manslaughter as 

follows:

Manslaughter in the First Degree

If you did not find the Defendant guilty under Instruction 1 

[Murder], you will find the Defendant, Terrence Downs, guilty of 

Manslaughter in the First Degree under this Instruction if, and 

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

all of the following:

(A) That in Jefferson County on or about December 10, 2016, he 

killed Reed by shooting him; AND 

(B) That in so doing:

(1) He intended to cause the death of Ronnie Reed while acting

under the influence of an extreme emotional disturbance as 

defined in Instruction No. 6; OR 

(2) He did not intend to kill Ronnie Reed but intended to cause 

serious physical injury to Ronnie Reed; AND

(C) That he was not privileged to act in self-protection, as set out in 

Instruction 1A.

The Commonwealth concedes that this instruction should not have 

required a finding that Downs acted under EED, but argues the error was not 

palpable. As we are reversing and remanding on other grounds, we need not 

address whether the error was palpable, but do direct the trial court on remand 

not to include EED as a requisite finding under this instruction unless the 

evidence supports such an instruction.
15

c. Provocation and Initial Aggressor Qualifying Instructions.

Downs argues that the trial court erred by providing the provocation and 

initial aggressor qualifying instructions as they were not supported by the 

evidence. Downs objected to the inclusion of these instructions that the 

Commonwealth tendered during trial. The trial court noted his objection and 

said it would make a final ruling once all the proof was submitted. However, 

Downs did not renew his objection the next day and the trial court included 

these qualifying instructions that rendered the defense of self-protection 

unavailable if Downs provoked Reed or if Downs was the initial aggressor. 

We review the trial court’s decision to provide a jury instruction under an 

abuse of discretion standard:

Under the familiar standard prescribed in Commonwealth v. 

English, 993 S.W.2d 941, 945 (Ky. 1999), a trial court abuses its 

discretion when its decision is arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles. A decision to give or to 

decline to give a particular jury instruction inherently requires 

complete familiarity with the factual and evidentiary subtleties of 

the case that are best understood by the judge overseeing the trial 

from the bench in the courtroom. Because such decisions are 

necessarily based upon the evidence presented at the trial, the trial 

judge’s superior view of that evidence warrants a measure of 

deference from appellate courts that is reflected in the abuse of 

discretion standard.

Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015) (internal quotations and 

citations omitted).

The provocation and initial aggressor instructions immediately followed 

the self-protection instruction and read:

Provocation Qualification
16

Provided, however, that if you believe from the evidence beyond a 

reasonable doubt that Terrence Downs provoked Ronnie Reed to 

use or attempt to use physical force upon him, then the defense of 

self-protection is not available to him.

Initial Aggressor Qualification

Provided, however, that if you believe from the evidence beyond a 

reasonable doubt that Terrence Downs was the initial aggressor, 

the defense of self-protection is not available to him unless:

(a) He did not initially intend to cause death or serious physical 

injury to Ronnie Reed and his initial physical force was not 

such that he thereby created and knew he was creating a 

substantial risk of death or serious physical injury to Ronnie 

Reed; AND

(b) The force returned or threatened by Ronnie Reed was such that 

Terrence Downs believed himself to be in imminent danger of 

death or serious physical injury.

The language in the trial court’s initial aggressor instruction follows the 

wording of KRS5 503.060, which in relevant part sets out exceptions to selfdefense: 

(3) The defendant was the initial aggressor, except that his 

use of physical force upon the other person under this 

circumstance is justifiable when:

(a) His initial physical force was nondeadly and the 

force returned by the other is such that he believes himself 

to be in imminent danger of death or serious physical injury 

In applying KRS 503.060 to jury instructions concerning the right to use 

deadly physical force, we have made clear that there must be sufficient 

evidence in the record to substantiate the instruction:

The criterion is whether movant, in good faith, believed it was 

necessary to exercise extreme force in saving his own life. It is not 

every assertion of such belief that is adequate to support a plea of 

 

5 Kentucky Revised Statutes. 
17

self-defense. It is the whole circumstances which surround the 

incident that must be considered by the trial judge in deciding 

whether an instruction on self-defense is proper or whether an 

instruction on self-defense with limitations is proper. We have 

held that before such qualifying instructions are proper there must 

of course be evidence to justify it. In other words, the trial judge 

must find as a matter of law that there is sufficient evidence to 

justify such limitations before instructing the jury. 

Stepp v. Commonwealth, 608 S.W.2d 371, 374 (Ky. 1980).

Downs argues that his initial request for Reed to come talk to him was 

insufficient to warrant the qualifying instructions and that Reed bringing a gun 

to the conversation was a “show of force” that precluded a finding that Downs 

provoked Reed or was the initial aggressor. However, Downs’s and Reed’s 

interaction was not limited to the parking lot; they also interacted in the 

apartment afterwards. Notably, the witnesses’ testimony at trial was 

conflicting as to whether Reed brandished his gun when he entered Brandy’s 

apartment, waving it around and pointing it at Downs, or whether he set the 

gun on the counter without making any threats and turned his back to it when 

Downs hit him from behind. 

This evidence, while conflicting, supported the trial court’s decision to

instruct the jury on provocation and initial aggressor. The jury was charged 

with weighing conflicting evidence, assessing the credibility of the witnesses, 

and drawing a conclusion in the form of a verdict. Clark v. Commonwealth, 

567 S.W.3d 565, 569–70 (Ky. 2019). The jury could have reasonably 

determined that Downs provoked Reed, or was the initial aggressor, when he 

picked up the gun and pistol-whipped Reed while Reed had his back to him. 
18

Therefore, the trial court did not abuse its discretion by instructing the jury on 

provocation and initial aggressor qualifications to self-defense.

d. Language of Provocation Instruction. 

Regarding the wording of the provocation instruction, Downs admits he 

did not preserve this issue for review and thus argues that the trial court 

committed palpable error by instructing the jury on provocation without 

including intent, a necessary element of the instruction. The Commonwealth 

acknowledges that the instruction was erroneous in that “it lack[ed] the 

statutory element requiring the defendant to provoke the victim with the intent 

to cause death or serious physical injury to him.” Barker v. Commonwealth, 341 

S.W.3d 112, 114 (Ky. 2011); see also 1 Cooper & Cetrulo, Kentucky Instructions 

to Juries, § 11.12 (2018) (includes statutory element of intent to cause death or 

serious physical injury). 

Whether jury instructions accurately state the law is a question of law, 

which we review de novo. Maupin v. Tankersley, 540 S.W.3d 357, 359 (Ky. 

2018); Sargent v. Shaffer, 467 S.W.3d at 204. Erroneous instructions are 

presumed to be prejudicial. McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997).

KRS 503.060(2), which addresses improper use of force in selfprotection, provides in part: “Notwithstanding the provisions of KRS 503.050,6

the use of physical force by a defendant upon another person is not justifiable 

when: (2) The defendant, with the intention of causing death or serious 

 

6 KRS 503.050 provides for self-defense: “Use of physical force in selfprotection.”
19

physical injury to the other person, provokes the use of physical force by 

such other person[.]” (emphasis added). Downs claims that the jury should 

have been instructed to find that he intended to cause the death or serious 

physical injury to Reed when he provoked Reed to use force against him. 

Downs is correct and on remand, the trial court shall include the necessary 

element of intent if the evidence supports an instruction on provocation. 

e. Downs Waived His Right to Appeal the Tampering with Physical 

Evidence Conviction.

Downs argues that the evidence was insufficient to support the 

tampering with physical evidence conviction. After the jury convicted him of 

first-degree manslaughter and tampering with physical evidence, Downs pled 

guilty to possession of a handgun by a convicted felon, PFO2, and tampering 

with physical evidence. Pursuant to the plea agreement, Downs reserved his 

right to appeal only the first-degree manslaughter conviction. Because he 

waived the right to appeal his conviction for tampering with physical evidence, 

we decline to review this claim of error. See Commonwealth v. Reed, 374 

S.W.3d 298, 300 (Ky. 2012) (“[a]n unconditional guilty plea waives the right to 

appeal . . . a finding of guilt on the sufficiency of the evidence”).

f. Jordyn Hinkle’s Prior Inconsistent Statement.

Downs asserts that the trial court improperly allowed the Commonwealth 

to introduce a recorded phone call that occurred between Brandy and Jordyn 

nine days after the murder through the testimony of Brandy, rather than 

Jordyn. Because Downs did not present an evidentiary rule or basis for his 

objection below, just that “it’s wrong, it’s not allowed,” the Commonwealth 
20

argues that this issue is unpreserved and should be reviewed for palpable error 

only. 

KRE7 103(a)(1) provides for an appeal on admission of evidence only if a 

timely objection was made at trial, and only when such objection “state[s] the 

specific ground for objection, if the specific ground was not apparent from the

context[.]” (emphasis added). While Downs timely objected to the recording 

coming in through Brandy, the record is void of any specific ground for his 

objection. That said, because the ground for objection was apparent from the 

context of counsel’s discussion at the bench (that the recorded phone call 

should have been played when Jordyn denied it took place), we will consider 

the issue preserved and review whether the trial court abused its discretion by 

admitting the recording through Brandy. Goodyear Tire & Rubber Co. v. 

Thompson, 11 S.W.3d 575, 577 (Ky. 2000) (an appellate court reviews a trial 

court’s evidentiary rulings for an abuse of discretion).

The record shows that the Commonwealth questioned Jordyn about 

whether she spoke on the phone with Brandy nine days after the murder, on 

December 19, 2016. Jordyn denied the phone conversation occurred and said, 

“if it was recorded, I’d like to hear it.” Later, the Commonwealth recalled 

Brandy who testified that she had recorded the phone call with Jordyn on that 

day at a detective’s request and that the recording was an accurate 

representation of their conversation. The recording was played for the jury. 

During the recording, two female voices (Brandy and Jordyn) discuss threats 

 

7 Kentucky Rules of Evidence. 
21

being made against them because of Reed’s murder. The female voice 

identified as Jordyn stated that Downs and Reed had “squashed it in the 

parking lot” and that when Reed and Downs came up to the apartment, Reed 

was being nice to her when, suddenly, Downs shot him — and that it was 

Downs’s fault. 

The Commonwealth maintains that it properly recalled Brandy for the 

sole purpose of introducing a prior inconsistent statement of Jordyn, since 

Jordyn testified inconsistent with that recording by denying ever speaking to 

Brandy on the phone on December 19, 2016. The Commonwealth points out 

that the recorded phone call was in discovery so Downs was aware of its 

content. 

Downs directs this Court to KRE 613 in support of his assertion that the 

Commonwealth should have played the recording after Jordyn testified — “if it 

was recorded, I’d like to hear it” — and allowed Jordyn the opportunity to 

refresh her recollection and explain herself. KRE 613 provides: 

Examining witness concerning prior statement. Before other 

evidence can be offered of the witness having made at another time 

a different statement, he must be inquired of concerning it, with 

the circumstances of time, place, and persons present, as correctly 

as the examining party can present them; and, if it be in writing, it 

must be shown to the witness, with opportunity to explain it. The 

court may allow such evidence to be introduced when it is 

impossible to comply with this rule because of the absence at the 

trial or hearing of the witness sought to be contradicted, and when 

the court finds that the impeaching party has acted in good faith.

KRE 613(a).
22

The Commonwealth contends that Downs conflates KRE 613(a)’s 

foundation requirement for introduction of a prior inconsistent statement with 

memory refreshment under KRE 612 and with the KRE 803(a) hearsay 

exception for introduction of a recorded recollection concerning a matter about 

which the witness once had knowledge. Under KRE 801A(a)(1), relating to 

prior statements of witnesses, “[a] statement is not excluded by the hearsay 

rule, even though the declarant is available as a witness, if the declarant 

testifies at the trial or hearing and is examined concerning the statement, with 

a foundation laid as required by KRE 613, and the statement is . . . 

[i]nconsistent with the declarant’s testimony[.]” An inconsistent statement for 

purposes of KRE 801A(a)(1) includes a witness’s claimed inability to recall 

making the statement. McAtee v. Commonwealth, 413 S.W.3d 608, 618 (Ky. 

2013). And under Kentucky law, “prior inconsistent statements may be 

introduced as an impeachment device and as substantive evidence.” Id.

Here, the Commonwealth established a foundation through Jordyn’s 

testimony, then applied KRE 801A(a)(1) and KRE 613 in introducing her prior 

statements by way of playing the recorded phone call. The recorded phone call 

was sufficiently authenticated for its introduction into evidence by Brandy’s 

identification of it as a phone call between her and Jordyn on December 19, 

2016 and representation that the recording was an accurate reproduction of 

their conversation. Because Brandy authenticated the recording, it was 

properly admitted as a prior inconsistent statement of Jordyn pursuant to KRE 

801A(a)(1). The Commonwealth need not have refreshed Jordyn’s recollection 
23

with it first. See King v. Commonwealth, 554 S.W.3d 343, 360 (Ky. 2018) (“KRE 

613 requires a written statement be shown to the witness; it does not address a 

recorded statement[]”). Thus, the trial court did not abuse its discretion by 

allowing the Commonwealth to introduce the recorded phone call through 

Brandy. That said, given that Jordyn now knows of the recorded phone call, 

we doubt this issue will arise again on remand. 

III. CONCLUSION.

Because Downs was deprived of his right to counsel at a critical stage of 

the proceedings, we reverse his judgment of conviction and corresponding 

sentence and remand this case to the trial court for further proceedings 

consistent with this Opinion. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Molly Mattingly

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

James Daryl Havey

Assistant Attorney General

Todd Dryden Ferguson

Assistant Attorney General