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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINIOJ\,I IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

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ACTION. 
RENDERED: FEBRUARY 16, 2017 

NOT TO BE PUBLISHED 

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2016-SC-000050-MR 

JOHNATHAN YOUNG APPELLANT 

V. 

ON APPEAL FROM MONROE CIRCUIT COURT 

HONORABLE DAVID L. WILLIAMS, JUDGE 

NO. 10-CR-00109-002 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Johnathan Young, was convicted by a Monroe Circuit Court 

jury of murder by complicity, first-degree robbery by complicity, and seconddegree arson by complicity. On appeal, this Court reversed Appellant's 

conviction and vacated his sixty-five year prison sentence on the basis of 

improper jury instructions. Young v. Commonwealth, 426 S.W.3d 577 (Ky. 

2014). Therein, we provided the following factual background: 

During the early morning hours of August 26, 2010, fire and 

rescue workers responded to a report of a house fire at the home of 

Thomas Max Martin. The responders found the home totally 

engulfed in flames and discovered Martin dead inside the 

home. Although his body was badly burned, there were two 

suspicious round holes in his skull. An autopsy of Martin's body 

confirmed that his cause of death had been two gunshot wounds to 

the head, not the fire at his residence. 
Police soon learned that on the evening of the fire, a neighbor had 

visited Martin at his home at approximately 10:00 p.m. on August 

25, and that at the time he had visited, two other men had been 

with Martin. The neighbor stated that one of the men went by the 

name "Jess." This information led police to focus their investigation 

on Jesse Parke and his eventual co-indictee, the Appellant. 

Young, 426 S.W.3d at 579. 

After we reversed and vacated Appellant's conviction and sentence in 

2014, Appellant was retried and convicted by a Monroe Circuit Courtjury of 

complicity to murder, complicity to second-degree arson, and complicity to 

theft by unlawful taking under $500. He was sentenced to twenty-five years' 

imprisonment. Appellant now appeals his conviction and sentence as a matter 

of right. See Ky. Const. § 110(2)(b). He raises only one issue. 

Analysis 

During Appellant's trial, the Monroe Circuit Court bailiff would open 

each day of Appellant's three day trial by announcing: "All Rise: Circuit Court 

is now in session, Judge David Williams presiding. Please bow with me for a 

moment of silent prayer." After a brief pause, the court commenced trial. This 

occurred in the presence of Appellant and the jury. Appellant now claims that 

this invocation of prayer was in error, and that reversal of his conviction is 

required. Because this issue was not properly preserved, we will review for 

palpable error. See RCr 10.26; and McCleery v. Commonwealth, 410 S.W.3d 

597, 606 (Ky. 2013) (we will not reverse unless "it can be determined that 

manifest injustice, i.e., a repugnant and intolerable outcome, resulted from 

that error."). See also Walker v. Commonwealth, 349 S.W.3d 307, 313 (Ky. 

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2011) ("even alleged constitutional errors, if unpreserved, are subject 

to palpable error review."). 

The underlying basis for Appellant's appeal is an alleged violation of the 

First Amendment's Establishment Clause. A similar issue was aptly addressed 

in Bates v. Secretary, Florida Department of Corrections, 768 F .3d 1278 (11th 

Cir. 2014). The Bates court ultimately denied the petitioner's habeas corpus 

petition and provided the following relevant analysis: 

The trouble for Bates here is that the Establishment Clause is not 

a trial right; a violation of the Establishment Clause at trial does 

not, standing alone, enable a criminal defendant to challenge his 

conviction. 

[However,] [w]hen religion is the basis of a due process challenge, 

courts look to whether the religious features of the trial 

substantially impaired the fairness of the proceeding; they do not 

ask, in the abstract, whether the events at trial violated the 

Establishment Clause. 

Id. at 1289-90. See also, e.g., United States v. Walker, 696 F.2d 277, 282 (4th 

Cir.1982) ("[The defendants] are not entitled to such a reversal [of their 

convictions] unless the content of the prayer substantially impaired the 

fairness of their trial."). 

The evidence against Appellant was clearly significant. He had been 

convicted by two different juries. In addition, he has failed to raise any other 

claim of error on appeal other than the present issue, thus indicating the 

propriety of his trial. Appellant also invoked religion during the penalty phase 

of trial by having multiple family members testify to their family's strong 

evangelical religious convictions. Therefore, under the specific facts of the 

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present case, we cannot say that the several silent prayers impaired the 

fairness of Appellant's trial. There was certainly no palpable error here. 

Conclusion 

For the foregoing reasons, we hereby affirm the judgment of the Monroe 

Circuit Court. 

All sitting. Minton, C.J.; Cunningham, Hughes, VanMeter, Venters, and 

Wright, JJ., concur. Keller, J., concurs in result only. 

COUNSEL FOR APPELLANT: 

Samuel N. Potter 

Department of Public Advocacy 

COUNSEL FOR APPELLEE: 

Andy Beshear 

Attorney General of Kentucky 

Jeffrey Allan Cross 

Assistant Attorney General 

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