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RENDERED: APRIL 18, 2024 

NOT TO BE PUBLISHED 

Supreme Court of Kentucky

2023-SC-0132-MR

TIMOTHY R. MAYS APPELLANT 

V. 

ON APPEAL FROM MARION CIRCUIT COURT

HONORABLE SAMUEL TODD SPALDING, JUDGE 

NO. 20-CR-00076

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

A jury of the Marion Circuit Court found Appellant Timothy R. Mays 

guilty of murder, tampering with physical evidence, and violation of a Kentucky 

interpersonal order of protection (“IPO”). The jury recommended a total 

sentence of life without the possibility of parole for 25 years. The trial court 

sentenced in accordance with that recommendation. Mays now appeals to this 

Court as a matter of right. Ky. Const. § 110(2)(b). After careful review, we 

affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

Mays and Nina Hunt began dating in August 2019. The relationship was 

tumultuous and almost immediately marred by domestic violence. During the 

course of the relationship, Hunt’s daughters observed injuries on her including 

bruising and black eyes. In one instance, Hunt also went to the hospital with 
2 

broken ribs. Hunt thereafter obtained an IPO against Mays, and also obtained 

a gun from a friend. The gun later went missing from her residence. 

 On April 2, 2020, Hunt ended her relationship with Mays. Mays then 

called Hunt incessantly for the next three days, leaving her forty voicemails 

over the course of that short time. 

On April 5, 2020, Mays was with his daughter Dawn, who testified that 

he was upset, pacing back and forth, and refused to speak to her. He then got 

in his car and drove away. Security camera footage showed Mays’ car pull into 

Hunt’s driveway, at which time Hunt texted her daughter Paige and said “he’s 

here!!!!” Paige immediately began driving to her mother’s residence. 

The security camera footage showed Mays’ car leaving Hunt’s residence 

fifteen minutes after his arrival. Paige arrived three minutes later, could not 

get into the residence, and called 911. Law enforcement arrived, broke into the 

home, and discovered Hunt lying near the back door with a gunshot wound to 

her head. Hunt was alive and taken to the hospital, where she died two days 

later. 

On the evening of the shooting, law enforcement obtained a search 

warrant, found Mays at home sleeping, and arrested him. During a search of 

his residence, law enforcement located a gun hidden behind an access panel to 

the furnace. Laboratory testing later identified a bullet found at the crime 

scene as having been fired from this gun. 

Mays was ultimately charged with murder, tampering with physical 

evidence, and violation of a Kentucky IPO. After an evidentiary hearing, the 
3 

trial court found Mays suffered a serious intellectual disability and was thus 

ineligible for the death penalty. At trial, the jury found him guilty on all three 

counts and recommended a sentence of life without the possibility of parole for 

25 years on the murder conviction, 5 years on the tampering conviction, and 

12 months on the violation of an IPO conviction. The trial court imposed a 

concurrent sentence of life without the possibility of parole for 25 years. Mays 

now appeals as a matter of right. 

ANALYSIS 

Mays raises six issues for our review: (1) whether he was denied a right 

to a fair trial when the trial court and Commonwealth’s counsel had an ex 

parte conversation regarding a witness’s refusal to testify due to an outstanding 

fine; (2) whether the prosecutor engaged in flagrant misconduct; (3) whether 

the trial court erred in declining to give an extreme emotional disturbance 

(“EED”) instruction; (4) whether the trial court erred in allowing a physician to 

testify that Hunt told him Mays had injured her; (5) whether Mays’ right to a 

fair trial was violated by a law enforcement officer’s reference during testimony 

to Mays’ status as a convicted felon; and (6) whether reversal is warranted for 

cumulative error. We review each issue in turn, providing additional facts as 

necessary. 

I. The Trial Court’s Ex Parte Conversation With The Prosecution 

Did Not Violate Mays’ Right To A Fair Trial. 

Mays’ first allegation of error relates to an ex parte conversation between 

the trial court and the Commonwealth’s counsel regarding the refusal of Hunt’s 
4

daughter Haley to testify at trial. On the first day of trial, the Court conducted 

voir dire and then recessed for lunch. Two minutes later the Commonwealth 

approached the bench without defense counsel present and advised the trial 

court that Haley was unwilling to testify because she had an outstanding fine 

and did not want to be arrested. The trial court responded that Haley would 

not be arrested for the fine, and instructed someone off camera (presumably 

the bailiff) not to serve the warrant on Haley. The prosecution did not inform 

Mays’ counsel about the conversation. Haley testified later that afternoon.

Mays contends this ex parte conversation violated his right to a fair trial 

in a number of ways. First, Mays contends his Confrontation Clause rights 

were violated because he was not informed of the conversation, leaving him 

unable to cross-examine Haley as to any potential bias in favor of the 

Commonwealth arising from the trial court’s decision not to enforce the 

warrant at that time. Second, Mays asserts the ex parte conversation also 

violated his right to be present at critical stages of trial. Finally, Mays also 

maintains the prosecutor’s failure to disclose the conversation was a Brady 

violation.

Mays acknowledges this issue is unpreserved, and therefore requests 

palpable error review pursuant to RCr1 10.26. Under 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 

1 Rule of Criminal Procedure.
5

manifest injustice has resulted from the error.” In determining whether an 

error is palpable, we consider

“whether on the whole case there is a substantial possibility that 

the result would have been any different.” To be palpable, an error 

must be “easily perceptible, plain, obvious and readily noticeable.” 

A palpable error must be so grave that, if uncorrected, it would 

seriously affect the fairness of the proceedings. “It should be so 

egregious that it jumps off the page . . . and cries out for relief.”

Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citations omitted). Even 

where an error is palpable and thus meets this standard, however, relief is 

warranted only where the error also results in manifest injustice. 

Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018). An error results in 

manifest injustice if it “so seriously affected the fairness, integrity, or public 

reputation of the proceeding as to be ‘shocking or jurisprudentially 

intolerable.’” Conrad v. Commonwealth, 534 S.W.3d 779, 783 (Ky. 2017) 

(quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)).

A. Mays’ Confrontation Clause Rights Were Not Violated.

“The Confrontation Clause of the Sixth Amendment guarantees the right 

of an accused in a criminal prosecution ‘to be confronted with the witnesses 

against him.’” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). This right 

secures for the defendant an opportunity for cross-examination, one important 

function of which is “the exposure of a witness’ motivation in testifying.” Id.

(quoting Davis v. Alaska, 415 U.S. 308, 316-17 (1974)). A right to reveal 

“possible biases, prejudices, or ulterior motives of the witness as they may 

relate to the issues . . . in the case at hand” through effective crossexamination is fundamental to a fair trial. Commonwealth v. Armstrong, 556 
6

S.W.3d 595, 600 (Ky. 2018) (quoting Davis, 415 U.S. at 316); Williams v. 

Commonwealth, 569 S.W.2d 139, 145 (Ky. 1978). Indeed, “a showing of bias 

can be particularly important in cross-examination because, unlike other forms 

of impeachment ‘which might indicate that the witness is lying[,] evidence of 

bias suggests why the witness might be lying.’” Armstrong, 556 S.W.3d at 602 

n.17 (quoting Star v. Commonwealth, 313 S.W.3d 30, 38 (Ky. 2010)). 

While defendants are thus assured of a right to conduct effective crossexamination, that does not mean trial judges are unable to impose limits on 

inquiries into a witness’s potential bias. To the contrary, “trial judges retain 

wide latitude . . . to impose reasonable limits on such cross-examination based 

on concerns about, among other things, harassment, prejudice, confusion of 

the issues, the witness’ safety, or interrogation that is repetitive or only 

marginally relevant.” Van Arsdall, 475 U.S. at 679. “So long as a reasonably 

complete picture of the witness’ veracity, bias and motivation is developed, the 

judge enjoys power and discretion to set appropriate boundaries.” Davenport v. 

Commonwealth, 177 S.W.3d 763, 768 (Ky. 2005) (quoting Commonwealth v. 

Maddox, 955 S.W.2d 718, 721 (Ky. 1997)).

A Confrontation Clause violation occurs when a defendant is “prohibited 

from engaging in otherwise appropriate cross-examination designed to show a 

prototypical form of bias on the part of the witness, and thereby ‘to expose to 

the jury the facts from which jurors . . . could appropriately draw inferences 

relating to the reliability of the witness.’” Olden v. Kentucky, 488 U.S. 227, 231 

(1988) (quoting Van Arsdall, 475 U.S. at 680). A defendant satisfies his burden 
7

of establishing such a violation by showing that “[a] reasonable jury might have 

received a significantly different impression of [the witness’s] credibility had 

[the defense’s] counsel been permitted to pursue” the desired crossexamination. Armstrong, 556 S.W.3d at 603 (quoting Van Arsdall, 475 U.S. at 

680).

Notably, courts have found this burden met when the cross-examination 

the defendant was unable to conduct would “clearly support[] an inference that 

the witness was biased, and when the potential for bias exceeds mere 

speculation.” Id. (quoting Davenport, 177 S.W.3d at 769). Of course, as a 

corollary, a defendant’s allegation of a Confrontation Clause violation fails 

where his contention that cross-examination might have revealed bias is based 

on nothing more than mere speculation and unsupported by credible evidence 

supporting an inference of bias. Id.; Davenport, 177 S.W.3d at 769.

Here, Mays’ assertion that evidence of Haley’s treatment by the trial 

court could be used to show potential bias in favor of the Commonwealth is 

based on mere speculation and unsupported by credible evidence that could 

support an inference of such bias. First, the record shows that the 

Commonwealth’s counsel simply informed the trial court that Haley refused to 

appear due to her outstanding fine. There was no request by Commonwealth’s 

counsel that Haley receive any favorable treatment. Rather, the trial court 

itself sua sponte directed the warrant not be served on Haley at that time. It 

thus appears that any favorable treatment enjoyed by Haley was at the trial 
8

court’s sua sponte direction rather than by request of the Commonwealth.2 

That the trial court directed a temporary reprieve from the warrant—without 

any request by the Commonwealth to do so—in no way supports an inference 

Haley might have been biased in favor of the Commonwealth. 

Second, the favorable treatment of Haley—if any—was also of a 

temporary nature, consisting solely of the trial court’s direction that the 

warrant for a fine not be served on her at trial. Thus, given that Haley enjoyed 

only a temporary reprieve from the warrant at the sua sponte direction of the 

trial court, Mays’ contention that such treatment may have led Haley to be 

biased in favor of the Commonwealth is not only mere speculation, but 

demonstrably refuted by the record. Notably, Mays also points us to no other 

evidence that could otherwise support an inference that Haley’s treatment 

could support a finding of bias in the Commonwealth’s favor. As such, we find 

no Confrontation Clause violation arising from the trial court’s ex parte 

conversation with the Commonwealth regarding Haley’s appearance at trial.

We further note that even if we were to find that Mays has shown a 

Confrontation Clause violation, the violation would not rise to the level of 

reversible error.

A trial court’s improper denial of the defendant’s opportunity to 

impeach a witness for bias is subject to harmless error analysis. 

Because the error is of constitutional significance, “[t]he correct 

inquiry is whether, assuming that the damaging potential of the 

cross-examination were fully realized, a reviewing court might 

nonetheless say that the error was harmless beyond a reasonable 

doubt.” Therefore, the error is harmless beyond a reasonable 

2 Indeed, in his briefing before this Court, Mays himself states “the jury was 

entitled to hear about the leniency given to [Haley] by the court.” (Emphasis added). 
9

doubt if there is no “reasonable possibility that exclusion of the 

evidence complained of might have contributed to the conviction.”

Armstrong, 556 S.W.3d at 604 (citations omitted). Courts consider a number of 

factors in determining whether the improper denial of a defendant’s 

opportunity to impeach a witness for bias is harmless beyond a reasonable 

doubt. These factors include “the importance of the witness’ testimony in the 

prosecution’s case, whether the testimony was cumulative, the presence or 

absence of evidence corroborating or contradicting the testimony of the witness 

on material points, the extent of the cross-examination otherwise permitted, 

and, of course, the overall strength of the prosecution’s case.” Olden, 488 U.S. 

at 233 (quoting Van Arsdall, 475 U.S. at 684).

Here, while Haley’s testimony was undoubtedly significant given that she 

was one of the victim’s daughters, it was not the crux of the prosecution’s case. 

Her testimony was largely limited to the historical context of Hunt’s 

relationship with Mays, in contrast with Paige’s testimony that covered that 

issue as well as additional topics of serving as her mother’s contact in times of 

distress with Mays and the discovery of her mother’s body shortly after the 

shooting. Haley’s testimony was also largely cumulative of Paige’s testimony, 

with two minor and insubstantial differences. First, while Paige testified 

someone stole Hunt’s gun, Haley testified Mays stole it. While Haley’s more 

specific testimony that Mays stole Hunt’s gun might appear at first blush to 

have more than minor significance, that significance is diminished by the fact 

that Haley acknowledged on cross-examination she was merely assuming Mays 

stole Hunt’s gun. Second, Haley testified Mays messed with and stole Hunt’s 
10

security cameras, while Paige testified only that Mays stole them. Haley’s 

testimony was also consistent with and corroborated by Paige’s testimony. 

This significantly undercuts any suggestion that Haley’s testimony was the 

product of bias due to her treatment by the trial court. In addition, Mays’ 

counsel was able to and did cross-examine Haley.

Finally, the prosecution’s case against Mays was unquestionably strong, 

even without considering Haley’s testimony. The evidence at trial showed that 

Mays and Hunt had a turbulent relationship rife with domestic violence, and 

that Hunt ended that relationship and ceased communicating with Mays three 

days before the murder. Over those three days, Mays nonetheless persisted in 

repeatedly calling Hunt, ultimately leaving her forty voicemail messages in that 

short span of time. Paige testified that Hunt feared Mays and that Hunt 

repeatedly asked her to check in to make sure she was safe. In addition, 

security footage showed Mays’ vehicle arriving at the residence around the time 

of the killing and leaving shortly thereafter. Finally, laboratory testimony 

identified a bullet found at the crime scene as having been fired by a gun 

discovered hidden in Mays’ home. 

Given the strength of this evidence and the overall case against Mays, as 

well as the other factors considered, we cannot conclude that Mays’ inability to 

cross-examine Haley regarding her treatment by the trial court in any way 

contributed to his conviction. As such, even if Mays’ Confrontation Clause 

rights had been violated, any such error would have been harmless beyond a 

reasonable doubt. 
11

B. Mays’ Right To Be Present At Critical Stages Was Not Violated.

Mays next asserts the trial court’s ex parte communication with the 

Commonwealth about Haley’s fine and warrant violated his right to be present 

at all critical stages of trial. RCr 8.28(1) provides that a criminal defendant 

“shall be present at . . . every critical stage of the trial[.]” In determining 

whether proceedings constitute a “critical stage of the trial,” we ask “whether 

there has been any interference with the defendant’s opportunity for effective 

cross-examination.” Cantrell v. Commonwealth, 288 S.W.3d 291, 297 (Ky. 

2009) (quoting Kentucky v. Stincer, 482 U.S. 730, 744 n.17 (1987)). 

We pause to note that the ex parte conversation between the trial court 

and the prosecution was at best inadvisable. The Kentucky Rules of 

Professional Conduct applicable to attorneys and the Kentucky Code of 

Judicial Conduct both generally prohibit lawyers and judges, respectively, from 

engaging in ex parte communications. SCR3 3.130(3.5)(b); SCR 4.300, Canon 

2, Rule 2.9. Here, there appears no reason the conversation between the judge 

and the prosecutor should have been conducted outside the presence of Mays’ 

counsel. We admonish the judges and attorneys of the Commonwealth to 

remain mindful of their ethical obligations and to avoid unnecessary ex parte 

communications whenever possible unless otherwise authorized by the relevant 

Rules.

Nonetheless, Mays’ contention that Haley’s treatment by the trial court 

may have biased her in favor of the Commonwealth is mere speculation 

3 Supreme Court Rule.
12

contrary to the record and unsupported by credible evidence. There is simply 

no basis to support an inference that either the ex parte conversation between 

the trial court and the prosecution or the resulting temporary reprieve of the 

warrant may have led Haley to be biased in favor of the Commonwealth. As 

such, it cannot be said that Mays’ absence from that conversation in any way 

interfered with his opportunity for effective cross-examination. Thus, Mays 

was not denied his RCr 8.28 right to be present at all critical stages of the trial.

C. There Was No Brady Violation.

Finally, Mays asserts the prosecutor’s failure to inform his counsel of her 

ex parte conversation with the trial court constitutes a Brady violation. Again, 

we disagree.

Under Brady, a prosecutor’s suppression of evidence favorable to an 

accused “violates due process where the evidence is material either to guilt or 

to punishment, irrespective of the good faith or bad faith of the prosecution.” 

Brady v. Maryland, 373 U.S. 83, 87 (1963). This includes “indirectly 

exculpatory” evidence that “impeaches the credibility of a witness whose 

testimony may be determinative of guilt or innocence.” Williams, 569 S.W.2d at 

143. One form of such evidence is proof of a deal or promise of leniency to a 

witness, given the value of such evidence “to the accused to show that the 

witness possessed a motive to fabricate.” Id.

Notably, however, Brady is violated only if the evidence the prosecution 

fails to disclose is material. Brady, 373 U.S. at 87. For Brady purposes, 

evidence is material 
13 

only if there is a reasonable probability that had the evidence been 

disclosed to the defense, the result of the trial would have been 

different. . . . [I]n the context of this different result consideration, 

a reasonable probability [is] one sufficient to undermine confidence 

in the outcome. 

. . . 

“The question is not whether the defendant would more likely than 

not have received a different verdict with the evidence, but whether 

in its absence he received a fair trial, understood as a trial 

resulting in a verdict worthy of confidence.” 

Benjamin v. Commonwealth, 266 S.W.3d 775, 780 (Ky. 2008) (quoting Kyles v. 

Whitley, 514 U.S. 419, 434 (1995)). 

Even considered in the light most favorable to Mays, the evidence the 

prosecutor failed to disclose was simply that the trial court directed a 

temporary reprieve from the warrant so Haley would testify. Such evidence in 

no way establishes or even suggests Haley may have been biased in favor of the 

Commonwealth. Moreover, Haley’s testimony was in any event cumulative of 

and corroborated by Paige’s testimony. And as discussed above, the evidence 

against Mays was strong. As such, evidence regarding Haley’s treatment by the 

trial court was wholly immaterial and the prosecutor’s failure to disclose that 

treatment or the ex parte conversation in no way leads us to question whether 

the jury’s verdict is worthy of confidence. Thus, because we perceive no 

violation of Mays’ Confrontation Clause rights, RCr 8.28, or Brady, reversal on 

those grounds is not warranted. 

II. The Prosecutor’s Alleged Misconduct, If Any, Was Not Flagrant 

And Does Not Warrant Reversal. 

Mays next asserts reversal is warranted on grounds of two separate 

incidents of purported prosecutorial misconduct during trial. First, during the 
14 

guilt-phase closing arguments the prosecutor addressed Hunt’s daughter Paige 

directly, stating “Paige, you did a darn good job. You saved her many times. 

You told us about the times that you went there and picked her up and got her 

out of that situation.” The prosecutor then turned to the jury and said “She 

did her best. She missed it by less than three minutes. But she just couldn’t 

protect this time.” 

Second, Mays called Dr. Martine Turns during the penalty phase to 

testify in mitigation regarding Mays’ intellectual disability. The Commonwealth 

cross-examined Dr. Turns. In the penalty-phase closing arguments, the 

prosecutor told the jury she did not agree with Dr. Turns that Mays had an 

intellectual disability: 

She just told you he suffered from an intellectual disability. Which 

again, I cross-examined and disagreed with her on several aspects 

of it. The way she conducted the test by using a previous 

psychologist upon which he had hired. I just disagreed and we 

looked at her school records. She gave you what those test 

findings were. We already knew what those were. Obviously, we 

talked about previous testimony. We knew that they were in the 

range that I disagreed with. I’m not a trained psychologist, but I 

wanted you all to hear it because I feel differently, and I didn’t 

know if you all would or not either. 

Mays acknowledges that his contention these incidents constitute prosecutorial 

misconduct is unpreserved, and he thus requests palpable error review under 

RCr 10.26. 

For unpreserved allegations of prosecutorial misconduct, we reverse only 

if the conduct was both flagrant and palpable error resulting in manifest 

injustice. RCr 10.26; Matheney v. Commonwealth, 191 S.W.3d 599, 606, 607 

n.4 (Ky. 2006). To determine if the misconduct is flagrant, we consider “(1) 
15

whether the remarks tended to mislead the jury or to prejudice the accused; (2) 

whether they were isolated or extensive; (3) whether they were deliberately or 

accidentally placed before the jury; and (4) the strength of the evidence against 

the accused.” Mayo v. Commonwealth, 322 S.W.3d 41, 56 (Ky. 2010) (quoting 

Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010)).

Mays asserts the prosecutor’s direct address to Paige and her comments 

that Paige did a “darn good job” and saved her mother many times, before 

turning to the jury and stating Paige did her best but missed the opportunity to 

save her mother by three minutes, was victim impact evidence improperly 

introduced during the guilt phase of the trial. We have held that the 

introduction of victim impact evidence during the guilt phase is reversible 

error. Ernst v. Commonwealth, 160 S.W.3d 744, 763 (Ky. 2005), declined to 

follow on other ground by Mason v. Commonwealth, 559 S.W.3d 337 (Ky. 2018). 

However, we have also held that prosecutors have latitude to “introduce 

evidence in the guilt phase identifying a victim as a living person rather than a 

simple statistic” because such victim background evidence “does not unduly 

prejudice a defendant ‘as long as the victim is not glorified or enlarged.’” Id.

(quoting Bowling v. Commonwealth, 942 S.W.2d 293, 302-03 (Ky. 1997)). 

“Victim impact evidence differs from victim background evidence, in that the 

former is ‘generally intended to arouse sympathy for the families of the victims, 

which, although relevant to the issue of penalty, is largely irrelevant to the 

issue of guilt or innocence.’” Id. (quoting Bennett v. Commonwealth, 978 

S.W.2d 322, 325-26 (Ky. 1998)). 
16

Here, misconduct in the prosecutor’s statement, if any, was minimal. 

The statement was largely a repetition of facts from the evidence presented at 

trial, namely that Paige had to help her mother on many occasions but was 

unable to do so on the day of the murder. Admittedly, the prosecutor’s 

addressing of the beginning of these comments directly to Paige and her 

statement that Paige did “a darn good job” were gratuitous and likely strayed 

from the proper role of the prosecutor in presenting the facts of the case to the 

jury. However, we do not find that they rise to the level of conduct misleading 

or prejudicial to Mays. The comments were also isolated and short in length, 

lasting approximately thirty seconds during the three-day trial. They also do 

not appear to be a deliberate attempt to prejudice Mays. Rather, the evident 

thrust of the statements was to bring back to the jury’s mind the fact of Hunt’s 

repeated need for Paige’s assistance in dealing with Mays’ violence rather than 

to arouse sympathy for Paige or Hunt as victims. Finally, as noted above, the 

strength of the evidence against Mays was in any event strong. As such, the 

prosecutor’s minimal misconduct, if any, was not flagrant.

Mays also contends the prosecutor engaged in misconduct when she told 

the jury she disagreed with the expert testimony that Mays suffered an 

intellectual disability. A prosecutor should not insert her “own personal belief” 

or make “comments that imply that the prosecutor has special knowledge of 

facts not in front of the jury or of the credibility and truthfulness of witnesses 

and their testimony.” Towe v. Commonwealth, 617 S.W.3d 355, 363 (Ky. 2021) 

(quoting Hall v. Commonwealth, 551 S.W.3d 7, 18 (Ky. 2018)). Here, however, 
17

the prosecutor’s remarks were not framed in a manner to suggest special 

expertise or insight into intellectual disability, but rather appropriately limited 

to expression of a reasonable disagreement with the expert witness’s 

conclusion. Indeed, the prosecutor stated she “just disagreed” and that she 

“fe[lt] differently.” While the prosecutor perhaps could have more artfully 

framed her comments as an invitation for the jury to disagree with Dr. Turns, 

she ultimately suggested only a reasonable difference of opinion rather than 

special knowledge providing insight that the expert was wrong.

Moreover, the alleged misconduct, if any, could not be found flagrant as 

required to warrant reversal on grounds of this unpreserved error. Again, 

because the prosecutor framed her remarks as a reasonable disagreement 

rather than specialized knowledge, those remarks did not prejudice Mays. 

That framing likewise suggests no deliberate attempt to prejudice Mays, but 

rather an intentional effort to avoid a prejudicial suggestion of specialized 

knowledge or insight. Finally, the comment was also isolated, and again the 

evidence against Mays was strong. As such, we find no flagrant prosecutorial 

misconduct warranting reversal of Mays’ conviction.

III. Mays Was Not Entitled To An EED Instruction.

Mays next argues reversal is required because the trial court refused his 

request for an EED instruction. Because Mays requested such an instruction 

at trial, the error is preserved. RCr 9.54(2). We therefore review for abuse of 

discretion. Caudill, 540 S.W.3d at 367. That is, we ask “whether the trial 
18

judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound 

legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 

Under Kentucky law, 

a person shall not be guilty [of intentional murder] if he acted 

under the influence of extreme emotional disturbance for which 

there was a reasonable explanation or excuse, the reasonableness 

of which is to be determined from the viewpoint of a person in the 

defendant’s situation under the circumstances as the defendant 

believed them to be.

KRS 507.020(1)(a).4 This Court has defined “extreme emotional disturbance” 

as “a temporary state of mind so enraged, inflamed, or disturbed as to 

overcome one’s judgment, and to cause one to act uncontrollably from the 

impelling force of the extreme emotional disturbance rather than from evil or 

malicious purposes.” Benjamin, 266 S.W.3d at 782 (quoting McClellan v. 

Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986)). 

A necessary element of EED is the existence of “[a]dequate provocation, 

or a ‘triggering event’” precipitating the extreme emotional disturbance. Id. 

This “triggering event” must be sudden and uninterrupted. Id. at 783. 

However, it need not be contemporaneous with the homicide, but rather may 

“‘fester in the mind’ before surfacing to exact its damage.” Id. (quoting Springer 

v. Commonwealth, 998 S.W.2d 439, 452 (Ky. 1999)). As a corollary, EED is 

unavailable where “there intervened between the provocation and the homicide 

a cooling-off period sufficient enough to preclude a conclusion that the 

provocation was adequate.” Id. A second necessary element of EED is that the 

4 An intentional homicide committed under the influence of extreme emotional 

disturbance constitutes the crime of first-degree manslaughter. KRS 507.030(1)(b). 
19

there was a reasonable explanation or excuse for the extreme emotional 

disturbance, considered subjectively from the “viewpoint of a person in the 

defendant’s situation under the circumstances as the defendant believed them 

to be.” KRS 507.020(1)(a); Benjamin, 266 S.W.3d at 783.

A trial court must “instruct the jury on the ‘whole law of the case, and 

this rule requires instructions applicable to every state of the case deducible or 

supported to any extent by the testimony.’” Posey v. Commonwealth, 595 

S.W.3d 81, 86 (Ky. 2019) (quoting Taylor v. Commonwealth, 995 S.W.2d 355, 

360 (Ky. 1999)). Of course, the obligation to give an instruction is “dependent 

upon there being sufficient evidence to warrant” the instruction. Id. “The trial 

court has no duty to instruct on theories of the case that are unsupported by 

the evidence.” Id. (quoting Driver v. Commonwealth, 361 S.W.3d 877, 888 (Ky. 

2012)). An EED instruction “must be supported by definite, non-speculative 

evidence.” Id. 

Here, the proof Mays contends entitled him to an EED instruction does 

not satisfy this standard. First, an EED instruction is warranted only where 

the evidence is sufficient to support a finding that the defendant actually 

suffered from an extreme emotional disturbance. The only evidence Mays 

offers that he was in such a state at the time of the killing is that he left Hunt 

numerous and repetitive voicemails expressing escalating emotions, and that 

he was silent, pacing, and apparently upset immediately before leaving to 

commit the crime. Mays’ characterization of the voicemails as showing 

escalating emotion is fanciful at best. A review of the voicemails shows they 
20

are consistent, fairly calm messages from Mays alternating between 

conciliatory and questioning themes of love, being “done wrong”, and seeking 

an explanation. More importantly, the voicemails in no way portray any lack of 

emotional control by Mays. This falls far short of definite, non-speculative 

evidence sufficient to support a finding Mays operated under a “a temporary 

state of mind so enraged, inflamed, or disturbed as to overcome one’s 

judgment, and to cause one to act uncontrollably from the impelling force of 

the extreme emotional disturbance rather than from evil or malicious 

purposes.” See Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky. 1997) 

(noting that evidence the defendant was “upset” does not suffice to show 

extreme emotional disturbance). 

It also bears noting that the evidence showed Mays absconded after the 

killing and was shortly thereafter found asleep in his home, further 

undercutting the possibility of any reasonable finding he was so enraged, 

inflamed, or disturbed as to overcome his judgment. Quite simply, an EED 

instruction was not warranted because the evidence could not support a 

reasonable finding Mays experienced an extreme emotional disturbance.

Second, an EED instruction is also warranted only if the evidence is 

sufficient to support a finding that there was a reasonable explanation or 

excuse for the extreme emotional disturbance, considered subjectively from the 

“viewpoint of a person in the defendant’s situation under the circumstances as 

the defendant believed them to be.” KRS 507.020(1)(a). Here, the only 

provocation pointed to by Mays is the fact that Hunt ended their relationship 
21

and cut off communication with him. Even considered subjectively from the 

perspective of a person in Mays’ situation and under the circumstances he 

experienced, Hunt’s ending of her relationship and communication with Mays 

cannot possibly be construed as adequate provocation or reasonable 

explanation or excuse for so extreme an emotional disturbance as to result in 

her death. Mays points to no evidence of some subjective aspect of his 

situation or beliefs that could possibly render the breakup a reasonable 

explanation or excuse for extreme emotional disturbance resulting in homicide. 

Indeed, we find it impossible to conceive of any subjective set of situations, 

beliefs, and circumstances that could warrant a finding that the mere ending of 

a relationship and cutting off of communication is a reasonable explanation or 

excuse for an extreme emotional disturbance. See Meredith v. Commonwealth, 

677 S.W.3d 452, 464 (Ky. 2023) (“The event must be so dramatic as to render 

the mind temporarily uncontrollable and provoke ‘an explosion of violence.’” 

(quoting Luna v. Commonwealth, 460 S.W.3d 851, 883 (Ky. 2015))). Thus, 

because there was no evidence to support a finding that Mays labored under 

an extreme emotional disturbance or that he experienced adequate provocation 

or had reasonable explanation or excuse for such a state, the trial court 

properly denied his request for an EED instruction.

IV. Admission Of A Physician’s Statement That Hunt Stated Mays 

Caused Her Injuries Was Harmless Error.

Mays next argues reversible error occurred when the trial court allowed 

Dr. Paul Thomas, a doctor who treated Hunt for broken ribs, to testify that 

Hunt told him Mays had punched her in the eye with a closed fist and then 
22

also kicked her in the ribs while wearing boots after she fell. Mays objected to 

admission of this evidence and his allegation of error is thus preserved. KRE5

103(a)(1). 

We review a preserved allegation of nonconstitutional evidentiary error 

for abuse of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 339 (Ky. 

2018). Preserved evidentiary errors are also subject to harmless error review. 

Carson v. Commonwealth, 621 S.W.3d 443, 450 (Ky. 2021). 

“[A] nonconstitutional evidentiary error may be deemed harmless if 

the reviewing court can say with fair assurance that the judgment 

was not substantially swayed by the error.” “[T]he inquiry is not 

simply ‘whether there was enough [evidence] to support the result, 

apart from the phase affected by the error. It is rather, even so, 

whether the error itself had substantial influence. If so, or if one is 

left in grave doubt, the conviction cannot stand.”

Mason, 559 S.W.3d at 339-40 (quoting Murray v. Commonwealth, 399 S.W.3d 

398, 404 (Ky. 2013)). Here, while we agree that Hunt’s statements to Dr. 

Thomas that Mays inflicted her injuries was inadmissible hearsay, we find the 

error in the admission of that evidence at most harmless. 

Hearsay, defined as “a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove the truth of 

the matter asserted,” is generally inadmissible. KRE 801(c); KRE 802. KRE 

803(4) provides a hearsay exception allowing for admission of “[s]tatements

made for purposes of medical treatment or diagnosis and describing medical 

history, or past or present symptoms, pain, or sensations, or the inception or 

general character of the cause or external source thereof insofar as reasonably 

5 Kentucky Rules of Evidence.
23

pertinent to treatment or diagnosis.” Typically, however, the identity of a 

perpetrator “is not relevant to treatment or diagnosis.” Colvard v. 

Commonwealth, 309 S.W.3d 239, 244 (Ky. 2010). Thus, we have held that as a 

general rule, KRE 803(4) does not authorize a medical provider to testify to a 

patient’s hearsay statements regarding who inflicted her injuries.6 Id. at 246-

47. As such, Hunt’s out-of-court statement to Dr. Thomas that Mays caused 

her injuries was not admissible under KRE 803(4).

However, the error in admitting that statement was at most harmless 

because it was cumulative of other evidence admitted at trial that Mays 

physically abused Hunt. Paige and Haley both testified to physical injuries 

suffered by Hunt during her relationship with Mays. Paige also testified to a 

violent incident she personally observed in which Mays threw Hunt against a 

wall. The jury also heard evidence regarding the IPOs entered against Mays, 

including that the IPOs included judicial findings domestic violence had 

occurred as well as a verbatim reading of the contents of Hunt’s sworn affidavit 

stating Mays threatened her, physically harmed her, and put her in the 

hospital with broken ribs. As such, Dr. Thomas’s testimony was purely 

cumulative and cannot be said to have substantially swayed the judgment in 

this case. The admission of that testimony was thus at most harmless error. 

6 This prohibition is not absolute. See id. at 247 (noting “[t]here may be 

circumstances in which [a patient’s hearsay identification of a perpetrator] will be 

found to comport with the requirements of KRE 803(4) . . . .”). For example, where it 

is shown that the patient’s identification of the perpetrator was reasonably pertinent to 

treatment or diagnosis and arose “from the patient’s desire for effective medical 

treatment,” the statement may fall within the scope of KRE 803(4). See id. at 246.
24

V. Trooper Forbus’ Reference To Mays’ Status As A Convicted Felon 

Was Not Palpable Error.

Mays next argues reversal is required because Trooper Forbus, an officer 

who responded to Paige’s 911 call on the day of the murder, testified the 

citation he wrote to Mays included a charge of being a convicted felon in 

possession of a firearm. Mays acknowledges the error is unpreserved, and we 

therefore review the issue for palpable error.

Mays’ status as a convicted felon was irrelevant to the charges he faced 

at trial and thus the jury should not have been informed of that fact. However, 

Trooper Forbus’ statement was fleeting and the Commonwealth did not elicit 

the testimony nor seek to emphasize it to the jury. When considering the 

fleeting brevity of the passing remark in comparison with the overall strength of 

the evidence of Mays’ guilt, we find no possibility—much less a substantial 

possibility—that the trial would have resulted in a different outcome had the 

error not occurred. See Davis, 620 S.W.3d at 30 (“To determine if an error is 

palpable, ‘an appellate court must consider whether on the whole case there is 

a substantial possibility that the result would have been any different.” 

(quoting Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky. 1983))). As such, 

Trooper Forbus’s comment was not palpable error and does not warrant 

reversal. 

VI. There Was No Cumulative Error.

Finally, Mays asserts reversal is warranted under the doctrine of 

cumulative error. Under this doctrine, “multiple errors, although harmless 

individually, may be deemed reversible if their cumulative effect is to render the 
25

trial fundamentally unfair.” Leavell v. Commonwealth, 671 S.W.3d 171, 184 

(Ky. 2023) (quoting Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)). 

The errors we have found here are the fleeting reference to Mays’ felon status, 

Dr. Thomas’s wholly cumulative statement that Hunt stated Mays caused her 

injuries, and prosecutorial comments that at most constitute minimal and nonflagrant misconduct. Significantly, none of these errors resulted in prejudice to 

Mays. As we have previously noted, “[w]here, as in this case, . . . none of the 

errors individually raised any real question of prejudice, we have declined to 

hold that the absence of prejudice plus the absence of prejudice somehow adds 

up to prejudice.” Id. (quoting Brown, 313 S.W.3d at 631). We thus do not find 

that the doctrine of cumulative error warrants reversal here. 

CONCLUSION

For the foregoing reasons, we affirm the judgment and sentence of the 

Marion Circuit Court.

All sitting. VanMeter, C.J.; Bisig, Conley, Lambert, Nickell, and 

Thompson, JJ., concur. Keller, J., concurs in result only. 
26

COUNSEL FOR APPELLANT:

Shannon Dupree 

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Kristin L. Conder

Assistant Attorney General