IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION.

 
RENDERED: DECEMBER 15, 2022

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0401-MR

BRANDON HAMBRICK APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT

V. HONORABLE KATHLEEN LAPE, JUDGE 

NO. 19-CR-01632-001

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Brandon Hambrick Jr. appeals as a matter of right1 from the Kenton

Circuit Court judgment sentencing him to forty-years’ imprisonment for his 

conviction of murder. On appeal, Hambrick raises three claims of error, none 

of which merit reversal. Accordingly, we affirm his judgment of conviction and 

sentence in all respects.

I. Factual and Procedural Background.

This case arises from a convoluted grudge held between two groups of 

young men, either over disrespectful lyrics in rap videos made by each group 

about the other or because of a marijuana transaction gone awry. In either 

1 Ky. Const. § 110(2)(b).
2

case, the result remains the same: one young man is dead and two are now in 

prison for their roles in his murder.

One month prior to the murder, Ishmail Powell, the brother of the victim, 

Ke’Ovion Seay, was in an increasingly acrimonious public feud with Deangleo 

Jones-Smith. These juveniles were members of rival groups: Powell and Seay a 

part of CBG,

2 based in Covington, and Jones-Smith and Hambrick members of 

Money Over Fame (“MOF”), based in Newport. The groups’ members had been 

creating rap videos featuring lyrics that disrespected the other group. 

Members of the two groups had also transacted with each other for marijuana. 

Powell allegedly purchased marijuana from a member of MOF using counterfeit 

money and relations between the two factions deteriorated further as members 

of MOF made threats of gun violence. An attempt to mediate the conflict by the 

boys’ guardians (by way of having the Powell and Jones-Smith simply engage in 

a fistfight to avoid further escalation) failed. Matters came to a head on August 

3, 2019, at the annual Old Timers Festival in Covington.

Powell and a small group of his friends encountered Jones-Smith, 

Hambrick, and two other young men, Elijah Maney and Elijah Beamon, while 

walking through the River’s Edge apartment complex on their way back to the 

festival. Powell saw Jones-Smith and Hambrick holding guns in their hands 

and, cognizant of the feud between himself and the other group, backed away 

while calling Seay for assistance. Powell remained distant from what occurred 

2 The Court’s review of the record uncovered no explanation as to the meaning 

of CBG.
3

and though he heard the shots, he did not see what happened. He further was 

unaware his brother had been killed until after the altercation was over.

Of the members of CBG, only one approached Jones-Smith. JonesSmith had wandered away from Hambrick and the others and was standing 

near a garbage area when Seay started to walk up to him. Jones-Smith 

pointed his gun at Seay, to which Seay responded by walking away and stating 

that if Jones-Smith would not fight then he would fight Hambrick. As Seay 

walked toward Hambrick, Jones-Smith fired his weapon three times into the air

to frighten Seay. Unfortunately, the shots did not have the effect he intended.

Eli Maney was the witness at trial who observed most of the events that 

night. Although his testimony wavered on points, Maney told the jury he was 

positioned between Jones-Smith and Hambrick when he heard multiple rounds 

of gunshots. The first round came from the direction of Jones-Smith as Maney 

saw him go behind garbage receptacles. The second round came from the 

direction of Hambrick, not from Jones-Smith. After the second round of shots, 

Maney began running in the same direction as Seay. Maney heard the third 

round of shots while he was running and felt something, he believed it to be 

bullets, pass by his head. Maney continued to run and saw neither the bullets 

hit Seay nor anyone shooting.

Morgan Barnes had driven the MOF group to the Old Timers Festival in 

the late afternoon, but did not stay. After spending several hours at a friend’s 

house, Barnes drove near the River’s Edge complex and noticed a large police 

presence. This prompted her to call Hambrick, with whom she had an intimate 
4

relationship. Hambrick told her he was fine, that he was at his house, and 

that she could come see him if she wanted. Barnes went to see Hambrick and 

the two drove to Newport’s Purple People Bridge where Hambrick admitted to 

her, “I shot my cousin. I love you. I’ll talk to you soon.”3 Hambrick then 

exited the car and Barnes had no additional contact with Hambrick from that 

point.

Seay was shot twice and died from his injuries. Covington Police located 

three sets of shell casings, two sets near the garbage area and one set roughly 

ten yards from Seay’s body which was approximately one city block from the 

garbage area. Ballistics identified three casings near the garbage area as 

having come from Jones-Smith’s gun and matched the remaining four 

casings—two found in a separate grouping close to the garbage area and two 

near Seay’s body—to a single unidentified firearm. In other words, these latter 

four casings were excluded as being shot from Jones-Smith’s gun. Neither 

bullet that struck Seay remained in his body and police were unable to locate 

the slugs, which precluded matching the fatal shots to the weapons of either 

Jones-Smith or Hambrick.4 

Police were able to identify the group that arrived with Jones-Smith and 

Hambrick and learned that only Jones-Smith and Hambrick possessed 

firearms that night. Jones-Smith turned himself in shortly after the incident. 

3 Seay was Hambrick’s cousin.

4 Jones-Smith provided his weapon to law enforcement. Hambrick’s weapon 

was never located.
5

Police arrested Hambrick not long after and charged both Hambrick and JonesSmith as juveniles with murder. The district court transferred their cases to 

the Kenton Circuit Court after the district court judge made the requisite 

findings.

Jones-Smith accepted an offer from the Commonwealth that allowed him 

to plead guilty to manslaughter in the first degree in exchange for testimony 

against Hambrick. The jury found Hambrick guilty of murder after a three-day 

trial and recommended he be sentenced to forty-five years' imprisonment. At 

sentencing, however, the judge imposed a slightly shorter sentence of forty 

years. Hambrick now appeals this judgment and sentence. 

II. Analysis.

Hambrick raises three claims of error on appeal: (1) the Commonwealth 

made misleading statements during trial and before the judge during 

arguments on jury instructions; (2) the Commonwealth argued facts not in 

evidence; and (3) the trial judge erred in admitting an excessive number of 

autopsy photos. We address each claim in turn.

A. Misleading Statements.

Hambrick first argues that his trial was rendered fundamentally unfair 

by the Commonwealth’s misleading statements. This argument revolves 

around statements made by an apparent eyewitness, Le’Nay Webb, to 

detectives that Jones-Smith in fact fired his weapon at Seay. Hambrick claims

that the Commonwealth misrepresented to the judge and jury that no one saw 
6

Jones-Smith shoot at Seay, and therefore its statements amount to 

prosecutorial misconduct. We disagree.5

The crux of Hambrick’s argument comes from testimony provided by 

Detective Robert Fain during the transfer hearing for Jones-Smith and 

Hambrick. There, Det. Fain discussed speaking to Webb who was present with 

Seay during the shooting. As described by Fain:

We had another witness, Le’Nay Webb, who was with the deceased, 

[Seay], and she had stated that when she was with him, she saw 

him—he handed her a plate of food, he crossed the street, and 

then that’s when he ran into the trouble. She stated that it was 

Deangelo Smith-Jones [sic] that opened fire on Mr. Hambrick first.

Det. Fain later corrected himself that Webb stated Jones-Smith fired upon 

Seay, not Hambrick. Webb herself did not testify at the transfer hearing, nor 

was she called as a witness during Hambrick’s trial.6

During trial, while discussing jury instructions with the trial judge, the 

Commonwealth made statements to the judge regarding the evidence against 

Hambrick and Jones-Smith:

Prosecutor: We have a dead person here and the evidence is that 

Brandon Hambrick shot him. That’s what we’re here 

for. So, we don’t have any direct evidence from 

Brandon Hambrick himself saying that the state of 

5 As to this claim of error, we note initially that Hambrick has failed to provide 

citations to the record where the Commonwealth is alleged to have misled the jury. 

This failure violates our appellate rules. Kentucky Rules of Civil Procedure (CR)

76.12(4)(c)(v). Our case law is clear that “an appellate court will not sift through a 

voluminous record to try to ascertain facts when a party has failed to comply with its 

obligation under [our rules of procedure] . . . to provide specific references to the 

record.” Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009)). Nonetheless, our 

own review of the record convinces us that the Commonwealth committed no 

misconduct in its statements to the jury.

6 The record reveals the Commonwealth subpoenaed Webb for trial, but she was 

apparently never successfully served.
7

mind was lesser than the intent for murder. What we 

have is a situation where they’re trying to piggy-back 

on the lesser because the co-defendant got it, therefore 

I should get it. Well, the co-defendant testified to a 

specific set of events which did not include him 

shooting at, or shooting, or killing the victim, Ke’Ovion 

Seay. We don’t have that in this instance. What 

separates Deangelo Jones-Smith from Brandon 

Hambrick is his conduct in this instance. And his 

conduct in this instance and why [Jones-Smith] plead 

to manslaughter first degree is he went over there to 

do harm, but he didn’t end up killing [Seay]. What we 

have here [involving Hambrick] is a criminal act where 

the victim Ke’Ovion Seay was killed. That’s what 

distinguishes it. That’s why [Jones-Smith] gets the 

manslaughter and that’s why [Hambrick] should get 

the murder charge.[7]

. . .

Prosecutor: The evidence showed that Deangelo Jones-Smith could 

not possibly have shot or killed Ke’Ovion Seay based 

on the location of where the ballistics were found, how 

far away he was from the body, the fact that there was 

no blood trail, there’s no evidence that Ke’Ovion Seay 

moved after being shot.

. . .

Judge: Okay, so there is no evidence that Deangelo could have 

shot, might have shot—no evidence put on that it was 

Deangelo that shot . . .

Prosecutor: No.

Judge: . . . the victim.

. . .

7 This is the full transcription of one of the few citations to the jury trial 

provided by Hambrick for this claim. By contrast, Hambrick’s transcription was the 

following: “the evidence that we have in this situation did not include shooting at or 

killing Ke’Ovion Seay... that is what separates the conduct of Deangelo Jones-Smith.” 

Hambrick’s transcription could be described generously as a “liberal summation” or

more harshly as a “misrepresentation of the record to this court.” We implore 

appellate counsel to double-check the accuracy of transcriptions in future briefs 

submitted before this and any other court.
8

Prosecutor: . . . [T]here’s no evidence that Hambrick was there and 

shooting but not the one who killed him. He’s either 

the one who’s shooting or he didn’t shoot at all.

Hambrick points us to no specific statements by the Commonwealth 

made in the presence of the jury to the effect that no one saw Jones-Smith 

shoot at Seay. The trial recording shows instances of the Commonwealth 

suggesting to the jury that Jones-Smith shot into the air and that Hambrick 

alone fired at Seay. This argument was, of course, the Commonwealth’s entire 

theory of the case. We find, and Hambrick cites to, no other instances of the 

Commonwealth suggesting that no other witnesses existed or that no one saw 

Jones-Smith shoot at Seay rather than in the air.

Hambrick did not object at trial to either the Commonwealth’s 

statements to the judge or its relevant statements before the jury. Accordingly, 

when a defendant alleges prosecutorial misconduct but made no 

contemporaneous objection, “we will reverse only where the misconduct was 

flagrant and was such as to render the trial fundamentally unfair.” Duncan v. 

Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010) (citing Barnes v. Commonwealth, 

91 S.W.3d 564 (Ky. 2002); Partin v. Commonwealth, 918 S.W.2d 219 (Ky.

1996)). We weigh four factors in consideration of such conduct being 

“flagrant”: “(1) 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.” Brafman v. Commonwealth, 612 S.W.3d 850, 
9

861 (Ky. 2020) (citing Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 

2016)).

 The case against Hambrick was largely circumstantial. The 

Commonwealth presented Jones-Smith who testified that he fired into the air 

twice to scare off Seay. Maney conceded that the second round of shots came 

from near where Hambrick was standing, although he never stated definitively 

that Hambrick fired the shots. Barnes told the jury Hambrick admitted to 

killing his cousin, but Hambrick argued that was just a reference to his role in 

the feud that led to Seay’s death. Ballistics evidence confirmed that the second 

and third round of shots came from the same gun, but police never recovered

the gun, although these shots did not come from Jones-Smith’s gun. The 

geography of the crime scene made it overwhelmingly likely that bullets from 

the third round of shots killed Seay, but because police were unable to recover 

the slugs that killed Seay, they had no way to confirm their theory. Hambrick’s 

guilt rested upon the Commonwealth’s ability to convince the jury that 

Hambrick had a gun, shot at Seay, and that his shots, not Jones-Smith’s, 

caused Seay’s death. Certainly, a witness willing to testify that Jones-Smith 

fired at Seay would be damaging to the Commonwealth’s case.

At the close of trial, the trial court raised the question of jury 

instructions. Defense counsel sought a complicity instruction but argued that 

it should be limited to manslaughter first degree because that was what 

Hambrick’s co-defendant received in his plea deal. The Commonwealth 

opposed any complicity instruction, arguing the facts and Hambrick’s defense 
10

made the case an all-or-nothing proposition. The Commonwealth contended

that because Hambrick’s defense was that he did not shoot at Seay at all and 

that either Jones-Smith or a person unknown was responsible for the gun fire,

no manslaughter first degree instruction, either as a pure lesser or complicity

instruction, was warranted.

Hambrick points us to three cases he argues support his position with 

the most relevant being Brafman. There, prosecutors charged Brafman with 

first- and second-degree arson as well as six counts of attempted murder. At 

trial, Brafman did little to argue she was not responsible for setting the fires. 

Rather, Brafman argued that due to intoxication she had no memory of the 

events of that night. Brafman was the only person to testify to her intoxication 

and she provided no corroborating evidence. During discussion of jury 

instructions, the trial court declined to allow a voluntary-intoxication 

instruction. At closing, the Commonwealth emphasized for the jury the 

absence of any other testimony regarding Brafman’s state of intoxication. The 

jury convicted Brafman on all counts. Brafman’s appellate counsel later 

discovered courtroom footage taken during a lunchtime break in the trial 

wherein the prosecutor and detective discussed Brafman’s intoxication. The 

detective described Brafman as “out of her fricking mind” and “meth-ed out.” 

Brafman, 612 S.W.3d at 860.

On appeal, Brafman argued in part that the Commonwealth was aware 

Brafman was intoxicated and strategically avoided asking one of its witnesses, 

a police detective, about the subject. The prosecutor’s argument at closing that 
11

“not one single witness testified to you that she appeared under the influence, 

intoxicated, drugged or anything” amplified this omission. Id. We agreed with 

Brafman that the prosecutor’s choice to avoid the subject of intoxication with 

his witness coupled with his statements at closing constituted flagrant 

misconduct.

In so holding we noted that the prosecutor’s statement to the jury was 

technically true—no one had testified to Brafman’s intoxication other than 

Brafman herself—and that the evidence against Brafman was “quite strong, 

perhaps overwhelming.” Id. at 862. However, the prosecutor’s direct and 

emphatic statement to the jury went straight to Brafman’s theory of the case 

and the statement was neither isolated nor accidental, with the prosecutor 

“tow[ing] technical lines, asserting merely that no one had affirmatively testified 

to Brafman's intoxication on the stand, and he knew the advantage he was 

gaining thereby, namely a certain conviction.” Id. In the end, even with the 

wide latitude we grant for closing argument, “what was done here went beyond 

arguing and construing facts to misleading the jury from the truth on a highly 

material issue. The conduct went beyond mere advocacy and prosecutorial 

zeal. It was unnecessarily exploitative and dishonest.” Id. at 863.

Brafman and Hambrick’s cases share certain similarities, most notably 

the technical truth found in the assertion that no one testified to seeing JonesSmith shoot at Seay. However, we also find a significant difference in the fact 

that Webb’s statement was known to Hambrick and his counsel since at least 

the date of his transfer hearing. No subterfuge occurred between the 
12

Commonwealth and witness as was the case in Brafman. While we recognized 

in Brafman that the Commonwealth had no duty to elicit adverse testimony on 

intoxication and that defense counsel could have crossed-examined the 

detective but elected not to, we nonetheless found the purposeful omission 

meaningful in the full context of that case. The nature of the offending 

statements in Hambrick’s case and the context surrounding them is 

distinguishable by the degree of awareness defense counsel had of Webb and 

her statement.

We also find Brafman distinguishable on all four factors we use to 

determine flagrant conduct. The first factor, whether the remarks tended to 

mislead the jury or to prejudice the accused, is distinguishable by severity. 

Certainly, the Commonwealth’s implication (since it made no direct statement) 

prejudiced Hambrick, but whether Jones-Smith shot at or away from Seay in 

the first round of gunshots had little bearing on Hambrick’s defense. The 

Commonwealth never contended Hambrick fired the first round of shots or that 

the fatal shots were fired in the first round. That Jones-Smith shot at Seay 

would not then exclude Hambrick from shooting at Seay, nor would it 

necessarily undermine the Commonwealth’s theory that the shooter of the 

third round was also the killer of Seay.

As to the first factor as it relates to jury instructions, whether the 

Commonwealth’s statements prejudiced Hambrick by denying him an 

instruction on manslaughter in the second-degree, we hold they did not. 

Crucially, the proposed lesser included offense, manslaughter in the first 
13

degree, is not distinguished from murder by whether the defendant 

successfully killed the victim. Both crimes require the jury to find the 

defendant caused the death of a person. The distinguishing element is the 

mens rea: murder requires intent to kill whereas manslaughter in the first 

degree requires intent to cause serious physical injury. Evidence that JonesSmith may also have attempted to kill Seay does not implicate Hambrick’s 

mental state and would not by itself justify placing manslaughter in the first 

degree before the jury. This distinguishes Hambrick’s case from Brafman. 

Whereas the prosecutor’s misconduct undermined Brafman’s entire defense by 

depriving her of a voluntary-intoxication instruction, here, even had Webb’s 

statement’s been introduced, Hambrick would not necessarily have been 

entitled to an instruction on manslaughter in the first degree. We weigh the 

first factor in favor of the Commonwealth.

As to the second and third factors, we have difficulty designating the 

Commonwealth’s comments to the jury, or, more properly, the lack thereof, as 

either extensive or isolated. The Commonwealth simply did not make any 

comments to the jury. This alone distinguishes Hambrick’s case from Brafman

as to any misconduct before the jury. However, the Commonwealth did make 

at least one direct statement to the judge when it responded “no” to the judge’s 

question if “[there was] no evidence put on that it was Deangelo that shot the 

victim.” This was technically true, but considering the statement made by 

Webb it was ultimately misleading. The statement was purposeful, meant to 

argue against a lesser-included charge instruction, but it was also isolated. We 
14

weigh the second factor in favor of the Commonwealth, and the third in favor of 

Hambrick.

Lastly, we address the strength of the evidence against Hambrick. As 

noted, the Commonwealth had no evidence to directly link Hambrick to the 

murder of Seay. What the Commonwealth did have was circumstantial: social 

media messages showing Hambrick involved in the feud, witnesses who saw 

some but not all of what happened, ballistics that could not definitively link the 

fatal shots to anyone. If the evidence of Hambrick’s guilt is not as 

overwhelming as in Brafman, the proof is nevertheless compelling. The 

evidence at trial established only Jones-Smith and Hambrick carried firearms 

that night. Jones-Smith turned in his gun and ballistics matched it to two 

bullets found near where Jones-Smith said he hid. The remaining bullets, 

including ones found near Seay’s body, all matched a single unknown firearm. 

The lack of a blood trail suggested the fatal shots hit Seay where his body lay. 

The jury made a reasonable inference to conclude that the unknown firearm 

was Hambrick’s gun and that Hambrick was the one who shot and killed Seay. 

Hambrick’s theories that perhaps Jones-Smith had two guns, or that an 

unknown assailant gunned down Jones-Smith were little more than 

conjecture.

In Brafman we found the severity of the Commonwealth’s misconduct 

outweighed even the substantial evidence of Brafman’s guilt. Here, the 

evidence is weaker, but so too is the magnitude of the Commonwealth’s 

actions. We have identified only one instance where the Commonwealth made 
15

improper statements which we weigh in favor of Hambrick, and we do not 

weigh it heavily in his favor. Accordingly, because we find the evidence against 

Hambrick to be compelling and we do not find the other factors outweigh this 

evidence, we hold that the Commonwealth committed no flagrant misconduct 

and Hambrick’s claim must fail.

B. Facts not in Evidence.

Hambrick’s next claim of error comes under the general heading of 

argumentation of facts not in evidence, but he presents us with several loosely 

related issues. Defense counsel did not object to these issues during the trial. 

Accordingly, we review these claims under RCr8 10.26 for palpable error. See, 

e.g., McCleery v. Commonwealth, 410 S.W.3d 597, 605 (Ky. 2013) (“A palpable 

error is clear and plain, affects the substantial rights of a party, and is more 

likely than other ordinary errors to affect the outcome of the case.”).

Hambrick alleges the Commonwealth erred in (a) arguing his lack of 

remorse during its penalty phase closing; (b) arguing he attempted to convince 

Jones-Smith to not testify; (c) arguing with Jones-Smith about the content of 

the jail calls; (d) referring to a prior conversation with Maney; and (e) 

summarizing the testimony of Maney while Maney was on the stand. We find 

commonalities sufficient to group issues (a) and (b) as a claim of arguing facts 

not in evidence at closing and issues (c), (d), and (e) as a claim of improper 

questioning. We address each argument in turn.

8 Kentucky Rules of Criminal Procedure.
16

1. Commonwealth’s Closing Argument.

“We reverse for prosecutorial misconduct in a closing argument only if 

the misconduct is ‘flagrant’ or if each of the following are satisfied: (1) proof of 

defendant's guilt is not overwhelming; (2) defense counsel objected; and (3) the 

trial court failed to cure the error with sufficient admonishment.” Barnes v. 

Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002). Because neither party

disputes that element (2) is not satisfied, Hambrick may only prevail if the 

Commonwealth’s misconduct was flagrant according to the test set forth in 

Brafman: “(1) 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.” 612 S.W.3d at 861. We consider closing 

arguments in their entirety, keeping in mind the wide latitude both parties are 

allowed during closing statements. Young v. Commonwealth, 25 S.W.3d 66, 

74–75 (Ky. 2000).

Hambrick argues two instances of improper argumentation, one during 

the Commonwealth’s guilt-phase closing and one during its penalty-phase 

closing. During its guilt-phase closing, the Commonwealth made several 

statements regarding jail calls Hambrick had with Jones-Smith prior to trial. 

During its penalty-phase closing the Commonwealth made statements to the 

jury regarding Hambrick’s alleged lack of remorse and suggesting Hambrick 

was too dangerous to be the beneficiary of a lenient sentence. 
17

As to the first factor, in neither instance can we consider the 

Commonwealth’s remarks to be misleading. The remarks are prejudicial, to be 

sure; virtually any remark the Commonwealth makes in relation to a defendant 

will damage his interests in one way or another. But this routine sort of 

prejudice is insubstantial absent misrepresentation. The Commonwealth’s 

characterization of the jail calls, which it played for the jury and which the 

Commonwealth discussed with Jones-Smith, and their conclusions regarding 

those calls were reasonable inferences to be made from the evidence. Although 

no expert on remorse or criminal rehabilitation testified during the penalty 

phase, we have nonetheless found comments on a defendant’s remorse and 

propensity to re-offend to be within the wide bounds of permissible 

argumentation during closing. See Miller v. Commonwealth, 283 S.W.3d 690, 

704 (Ky. 2009) (“holding that prosecutor’s comments that defendant “is out of 

jail two years and he is raping children” was not misconduct “[g]iven the wide 

latitude afforded the parties during closing argument.”). We weigh this factor 

in favor of the Commonwealth.

As to the second factor (whether the statements were isolated or 

extensive) and third factor (whether the statements were deliberately or 

accidentally placed before the jury), in each instance, the statements were 

deliberate and formed a portion of the whole argument, more than an isolated 

remark. The penalty-phase remarks pervaded the Commonwealth’s arguments 

for harsh sentencing, but the guilt-phase remarks were only a relatively minor 

element of the full closing. We weigh these factors against the Commonwealth.
18

Finally, we have already discussed the final factor, the weight of the 

evidence against the accused, previously. We reiterate only that the evidence 

against Hambrick was compelling if not overwhelming, but we nonetheless 

weigh this factor in favor of the Commonwealth. Considering all four factors, 

we hold that the statements made by the Commonwealth were not flagrant 

misconduct, and Hambrick’s claim as to those statements is without merit.

2. Commonwealth’s Questioning of the Witnesses.

Hambrick points us to three instances where he believes the 

Commonwealth stepped outside the permissible bounds of questioning: (1) 

during its examination of Jones-Smith, the Commonwealth argued with him 

about the content of the jail calls between Jones-Smith and Hambrick; (2) 

during examination of Maney, the Commonwealth repeatedly clarified and 

restated what Maney had said; and (3) during the questioning of Maney, the 

Commonwealth made reference to a conversation between the prosecutor and 

Maney. While the Commonwealth’s reference to its out of court conversation 

with Maney was improper, we nonetheless do not find the questioning to be 

reversible error.

At trial, during Hambrick’s cross-examination of Jones-Smith, 

Hambrick’s trial counsel began a line of questioning with Jones-Smith 

regarding jail calls he had with Hambrick. Trial counsel’s purpose was to 

suggest Hambrick wanted Jones-Smith to testify to show Hambrick was not

involved in the shooting of Seay. On re-direct, the Commonwealth addressed 

the jail calls. When Jones-Smith denied Hambrick attempted to dissuade him 
19

from testifying, the Commonwealth recited to Jones-Smith portions of the jail 

call and asked Jones-Smith what he meant. Jones-Smith continued to deny 

Hambrick did not want him to testify.

We struggle to see what Hambrick believes was error in this interaction. 

Hambrick’s trial counsel raised the jail calls during cross-examination. When 

Jones-Smith denied on redirect that Hambrick did not want Jones-Smith to 

testify, the Commonwealth impeached Jones-Smith with the contents of the jail 

calls. Prosecutors ultimately played those jail calls for the jury and entered

them into evidence. That the Commonwealth argued with their own witness 

over the meaning of what was said in those calls seems to us to be a normal

part of examining a witness who is present as part of a plea offer and hesitant 

to testify against a friend. The Commonwealth did not make assertions of fact 

that run afoul of our decision in Dillon v. Commonwealth, 475 S.W.3d 1 (Ky. 

2015); rather, the prosecutor asked Jones-Smith if the calls demonstrated 

Hambrick attempting to dissuade Jones-Smith from testifying. When JonesSmith answered in the negative, the Commonwealth impeached him with the 

content of those calls which it subsequently entered into evidence. We perceive 

this action to be standard trial strategy.

As to the Commonwealth’s examination of Maney. Maney was not a 

perfect witness for the Commonwealth; he was hard to understand, had 

difficulty staying on topic, and was difficult for the Commonwealth to control. 

Maney was also the only witness called at trial who saw most of what occurred 

that night and perceived that Hambrick fired the second and third round of 
20

shots (though he refused to say that Hambrick was the shooter). His testimony 

was thus important for the Commonwealth’s case. The prosecutor did what 

she could in her examination which included having Maney point to spots on a 

map shown on a television screen to indicate where the individuals involved in 

the shooting were standing.

At various points in Maney’s testimony, the Commonwealth attempted to 

clarify or summarize Maney’s statements by rephrasing what Maney had said 

and asking Maney to confirm if that clarification was correct. If Maney thought 

the clarification was wrong, he did not hesitate to point out the error. One 

such interaction occurred after Maney returned to the witness stand from 

pointing out locations on the television-displayed map:

Prosecutor: I wanna recap pointing at the map so that the 

members of the jury can see what you were drawing.

Maney: Okay.

Prosecutor: [While pointing at map] You said [Seay] came from over 

here, [Hambrick’s] right here, you’re right here, [JonesSmith] was over here, walked down behind the trash.

Maney: Yeah.

Prosecutor: [Seay] followed [Jones-Smith] to behind the trash.

Maney: Yeah.

Prosecutor: The two of them were over there.

Maney: Yeah.

Prosecutor: And you heard one, maybe two shots go off.

Maney: Yeah.

Prosecutor: [Seay] was not hit at that time.

Maney: Naw, ‘cause he walked- naw, he ain’t- naw, ‘causeProsecutor: ‘Cause [Seay] walked off.

Maney: Yeah, ‘cause he walked back like over-
21

Prosecutor: [Seay] started walking towards [Hambrick], is that 

correct?

Maney: Yeah, but I dunno who was- I dunno where [Hambrick] 

was so he could’ve been, like, you feel what I’m s- like, 

‘cause, he could’ve been walking over there but not 

been going to [Hambrick], but [Hambrick] was over 

there.

Prosecutor: [Hambrick] was over here and I believe you said 

[Hambrick] was over here alone.

Maney: Yeah, naw- Can I get back up? Or shit, how you 

feeling? Like, shit, what I’m saying is, like, look: I ain’t 

saying, that’s why I said there was other people there, 

‘cause, so, because he, like, I don’t know who was all 

back there; I ain’t saying he was just alone, but as far 

as right there where you pointing at—yeah—he was 

probably in that little likeProsecutor: Right here in this vicinityManey: Yeah.

The prosecutor summarized Maney’s testimony in this way several times while 

Maney was on the stand.

We cannot say the Commonwealth’s method of questioning in these 

instances—summarizing or clarifying for the witness what he had just said—is 

a best practice for those conducting direct examinations, even with a difficult 

witness. However, in terms of impropriety, at most, the Commonwealth asked 

its witness leading questions in violation of KRE9 611(c). Even so, “the 

language of that rule makes it clear that the proscription against leading 

questions is not absolute.” See Tamme v. Commonwealth, 973 S.W.2d 13, 27 

(Ky. 1998); KRE 611(c) (holding that “[l]eading questions should not be used on 

the direct examination of a witness except as may be necessary to develop the 

9 Kentucky Rules of Evidence.
22

witness' testimony[]”). Further, even if Hambrick had properly objected to the 

leading questions, “judgments will not be reversed because of leading questions 

unless the trial judge abused his discretion and a shocking miscarriage of 

justice resulted.” Tamme, 973 S.W.2d at 27. Ultimately, in this case, the 

Commonwealth did not state anything that Maney himself did not put before 

the jury during his testimony. Further, Maney agreed with the substance of 

the Commonwealth’s summaries and offered his own clarifications as needed. 

Accordingly, Commonwealth’s questioning did not result in manifest injustice.

Of greater concern during the examination of Maney is the following 

interaction:

Prosecutor: At this point did you know that [Hambrick] had a gun?

Maney: No, I did not know he had a gun. I didn’t know he had 

a gun at all.

Prosecutor: Did you suspect he had a gun by his demeanor?

Maney: Naw, when I seen- well, when I seen [Powell] then I 

seen him go over there I started feeling funny, ‘cause 

like, if it- if I’m arguing with somebody, you know what 

I’m saying, walk up to them, but everything, everybody 

different and everybody gonna go about things 

different, you know what I’m saying? Like, he couldthey both could’ve been feeling like, like nervous, you 

know, like anxiety or whatever, you feel me? So, naw, 

nope.

Prosecutor: Do you remember meeting with us probably a few 

weeks ago?

Maney: Yeah, yeah.

Prosecutor: Do you remember talking to us about a hand- you 

seeing [Hambrick’s] hand in his pocket?

Maney: Yeah, when he was pulling up his pants, yeah when he 

was pulling up his pants. It was, it was like, it looked 

like he could’ve had something on his waist. At the 

same time, I never seen no gun on his waist. I didn’t 
23

see none of that; I was on the other side of him, like, 

so likeThe Commonwealth’s two questions referring to a meeting between the 

prosecutor and Maney some weeks before the trial run afoul of our holding in 

Holt v. Commonwealth, 219 S.W.3d 731 (Ky. 2007). In Holt we held, “assertions 

of fact from counsel as to the content of prior conversations with witnesses 

have the effect of making a witness of the lawyer and allowing his or her 

credibility to be substituted for that of the witness. Such a practice also 

violates KRE 603 and KRE 802.” Id. at 737. While such an error is an 

appropriate basis for reversal under harmless error review, id. at 738, here we 

must determine if the questions merit reversal under our more stringent 

palpable error standard. See Dillon, 475 S.W.3d at 19 (stating, as a result of a 

failure to object to an impeachment method, “Dillon therefore is not entitled to 

the benefit of harmless-error review, which requires only a showing that the 

error had a substantial effect on the verdict. Instead, the alleged error can only 

be reviewed if it rises to the level of palpable error[]”). We find they do not.

While improper, the questions were of a different character from past 

cases where we have found reversal appropriate. In Holt, Dillon, and Fisher v. 

Commonwealth, 620 S.W.3d 1 (Ky. 2021), the prosecutor asked the questions

repeatedly and recited the statements made by the witness during the prior 

meeting. Further, the content of the prosecutor’s improper statement in Holt

was such that she “practically supplied a purported confession of a criminal 

defendant to the jury directly and unqualifiedly[.]” Fisher, 620 S.W.3d at 15. 
24

The prosecutor’s statements in Holt also directly contradicted the testimony of 

the witness. Holt, 219 S.W.3d at 734.

Here, the Commonwealth did not repeat the offending questions and the 

content of those questions was not of the same character as seen in Holt or 

Dillon. The first question was simply a reference to the prior meeting, not to 

any statements made during that meeting. The second question approached 

repeating a prior statement by Maney, suggesting that Maney said he thought 

Hambrick had a gun when he saw him with his hand in his pocket, but the 

reference to what Maney actually said was oblique and open ended. When 

Maney addressed that prior statement he clarified what he previously said, and 

the prosecutor made no subsequent references to the prior meeting. Even in 

cases where we have found the Commonwealth’s error to be obvious, we have 

declined to find palpable error based on the improper questioning alone. 

Dillon, 475 S.W.3d at 21 (noting “[t]hat the error is obvious, however, is not the 

end of the palpable-error inquiry[]”). Here, the Commonwealth limited their

questioning, and the witness was allowed to discuss his prior statement 

without continued impeachment. Accordingly, no manifest injustice resulted

from the Commonwealth’s questioning.

C. The Autopsy Photos were Properly Admitted.

Finally, Hambrick argues that the trial court admitted an unnecessary 

number of autopsy photographs of Seay over Hambrick’s objection. The trial 

judge admitted ten autopsy photos, of which Hambrick’s counsel objected to
25

seven.

10 Hambrick argues that the introduction of so many autopsy photos 

was duplicative and such admission only served to inflame the passions of the 

jury. 

Our rules of evidence permit relevant evidence to be excluded if “its 

probative value is substantially outweighed by the danger of undue prejudice. . 

. .” KRE 403. If a photograph is otherwise admissible, the gruesomeness of 

the photograph does not by itself make the photograph inadmissible unless “its 

depictions go ‘far beyond demonstrating proof of a contested, relevant fact.’” 

Ratliff v. Commonwealth, 194 S.W.3d 258, 271 (Ky. 2006) (citing Funk v. 

Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992); then quoting Holland v. 

Commonwealth, 703 S.W.2d 876, 879 (Ky. 1985)).

Here, we find the objected-to photographs of Seay to be not unusual for 

autopsy photographs in that the injuries they depict are sadly common in 

murder cases. The photographs are various views of the gunshot wounds Seay 

received that the Commonwealth used to explain its theory of what happened 

during the shooting. The photographs are simply not of the same character as 

instances where we have found the images to be so gruesome as to go far 

beyond demonstrating a contested relevant fact. See Ratliff, 194 S.W.2d at 271 

(collecting cases). Additionally, the Commonwealth introduced each 

10 At the introduction on the fourth photo, trial counsel objected to all autopsy 

photographs and sought to stipulate to the fact that Seay had been shot and those 

shots caused his death. Trial counsel did not renew his objection for every 

subsequent photograph that the Commonwealth introduced. Because our decision 

does not turn on whether Hambrick properly preserved an objection as to each 

photograph, we need not delve into the issue further.
26

photograph to explain a different point of its case. As such, none of the 

photographs were duplicative or needlessly cumulative.

Hambrick also argues that he did not contest the manner of Seay’s 

death, thereby making the photographs irrelevant for the jury. However, “the 

prosecution is permitted to prove its case by competent evidence of its own 

choosing, and the defendant may not stipulate away the parts of the case that 

he does not want the jury to see.” Barnett v. Commonwealth, 979 S.W.2d 98, 

103 (Ky. 1998). Further, although Hambrick argues the photographs did not 

go to a contested fact, the nature of the case itself—a chaotic scene without 

witnesses to the shooting—suggests a clear understanding of Seay’s injuries 

was relevant for the jury. Accordingly, the trial court did not abuse its 

discretion in determining the photographs were relevant.

III. Conclusion.

For the foregoing reasons, the Kenton Circuit Court is affirmed in all 

respects.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Linda J. Adkins

Kathleen Kallaher Schmidt

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Thomas Allen Van De Rostyne

Assistant Attorney General