GREGORY Q. POSEY RENDERED: AUGUST 29, 2019

TO BE PUBLISHED

2018-SC-000085-MR

ON APPEAL FROM LOGAN CIRCUIT COURT

V. HONORABLE JOHN L. ATKINS, SPECIAL JUDGE

NO. 16-CR-00195

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE HUGHES

AFFIRMING

Gregory Q. Posey appeals as a matter of right from the Logan Circuit

Court judgment sentencing him to life in prison for murder and being a

convicted felon in possession of a handgun. Posey was convicted of murdering

Patrick “ PJ ” Gilbert, who was in a relationship with Posey ’ s ex-girlfriend, the

mother of his two children. On appeal, Posey argues that the trial court erred

in (1) failing to give the jury an instruction on extreme emotional disturbance,

(2) failing to admonish the jury, and (3) failing to exclude prior convictions

provided prior to the penalty phase. Finding no error, we affirm the trial court.FACTS AND PROCEDURAL HISTORY

From 2009 to 2014 Gregory Posey and Chelsea Ogles were in a

relationship which produced two children. In 2015, Ogles entered a

relationship with Posey ’ s friend, Patrick “ PJ ” Gilbert. When Posey learned of

their relationship, he was angry and felt disrespected and betrayed. Posey

called Judge Tyler Gill, the local circuit judge, on March 28, 2016, because he

was very upset and expressed that he did not care whether he went to the

penitentiary or the graveyard but he refused to let someone keep disrespecting

him. 1 Judge Gill met with Posey a short time after their phone conversation.

At trial, Judge Gill testified that during the in-person conversation he tried to

reason with Posey and reminded him of the potential consequences of taking

extreme action. Judge Gill stated that after Posey expressed that consequences

did not matter to him, Judge Gill arranged for immediate counseling for Posey.

After talking with Posey, Judge Gill asked a sheriff to speak with Chelsea

and PJ to warn them because Posey was very upset. The sheriff also attempted

to find Posey. Because of these potential threats to harm either Chelsea or PJ,

the police began monitoring Posey ’ s Facebook account. As early as June 2015

(more than a year before PJ ’ s murder), Posey began making threatening

comments to PJ via text message and Facebook. At trial, the Commonwealth

introduced numerous messages from Posey to PJ stating things like “ you can ’ t

1 It is unclear why Posey reached out to Judge Gill. Judge Gill recused himself

from Posey

’ s case in anticipation of being required to testify at trial, and a special

judge was appointed.

2hide forever, ” Posey swearing on his life that PJ is going to die, and that he bets

he will kill PJ before PJ kills him. 2

On July 24, 2016, Patrick “ PJ ” Gilbert (PJ) was playing dice with friends

in a small room used for gaming. Posey entered the room and shot PJ five

times. PJ then crawled outside where he died soon after.

After a jury trial, Posey was convicted of murder and being a convicted

felon in possession of a firearm and he was sentenced to life imprisonment. 3

Posey now appeals his conviction as a matter of right.

ANALYSIS

Posey alleges three errors on appeal: (1) the trial court erred by not giving

an instruction for first-degree manslaughter based on extreme emotional

disturbance; (2) the trial court should have admonished the jury that prior

threats are not substantive evidence that Posey committed a crime, and (3) the

trial court should have excluded prior convictions that were provided to the

defense the morning of sentencing. We address each argument in turn.

2 The Commonwealth introduced over 50 threatening messages sent from Posey

to PJ between February and May of 2016. The Commonwealth also introduced

numerous violent threatening messages Posey posted on Facebook between February

and July of 2016. Some of the posts reference PJ directly. We also note that

approximately twenty-two minutes of the video record is missing, during which time

the Commonwealth was presenting other threatening messages.

3 The jury recommended a life sentence for the murder and ten years on the

firearm possession charge to be served consecutively. Because a term of years

sentence cannot run consecutively to a life sentence, the trial court sentenced Posey to

life in prison, with the ten-year sentence running concurrently.

3I. The Trial Court Did Not Err in Denying Posey ’ s Request for a

First-Degree Manslaughter Instruction Under Extreme Emotional

Disturbance.

When discussing jury instructions during trial, Posey argued that he was

entitled to a first-degree manslaughter instruction on the grounds that he

acted under extreme emotional disturbance (EED). Posey argued that his

Facebook posts and the text messages he sent to PJ showed his state of mind,

i.e., that he was “ beyond upset. ” He stated that finding out Chelsea was

pregnant constituted the triggering event, which led to PJ ’ s death.

The Commonwealth disagreed, stating that there was no testimony as to

how or when Posey found out about the pregnancy, the alleged triggering event.

Further, the Commonwealth suggested Posey may have pre-meditated using

EED as a defense based on a text message Posey sent to PJ that contained

death threats and stated “ [n]ot guilty on the grounds of insanity. ” After hearing

arguments from both sides, the trial court decided against providing a firstdegree manslaughter instruction on the basis of EED. On appeal, Posey argues

that the trial court erred in failing to instruct the jury based on EED. “ We

review a trial court ’ s rulings regarding jury instructions for an abuse of

discretion. ” Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006) (citing

Johnson v. Commonwealth, 134 S.W.3d 563, 569-70 (Ky. 2004)).

Under Kentucky Revised Statute (KRS) 507.030(l)(b),

[a] person is guilty of manslaughter in the first degree when:

[w]ith i n tent to cause the death of another person, he causes the

death of such person or of a third person under circumstances

which do not constitute murder because he acts under the

influence of extreme emotional disturbance

. . .

4EED is defined by this Court as follows:

Extreme emotional disturbance is 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. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not

constitute an extreme emotional disturbance unless there is a

reasonable explanation or excuse therefore, the reasonableness

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

the defendant's situation under circumstances as defendant

believed them to be.

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

The EED defense requires a triggering event that provokes the

disturbance, and this Court has held that the triggering event may include “ the

cumulative impact of a series of related events. ” Fields v. Commonwealth, 44

S.W.3d 355, 359 (Ky. 2001). While a triggering event does not have to

immediately precede a criminal act, it must be sudden and uninterrupted.

Keeling v. Commonwealth, 381 S.W.3d 248, 265 (Ky. 2012). “ Because one's

emotional response to a situation may dissipate over time, a subsidiary inquiry

arises as to whether there intervened between the provocation and the

resulting homicide a cooling-off period of sufficient duration that the

provocation should no longer be regarded as ‘ adequate. ’ ” Fields, 44 S.W.3d at

359.

To summarize, to be entitled to an EED instruction, Posey must prove

there was a sudden and uninterrupted triggering event, he was extremely

emotionally disturbed as a result, and he acted under the influence of that

disturbance. The reasonableness of a claim of EED is evaluated subjectively

5from the defendant ’ s point of view. Holland v. Commonwealth, 466 S.W.3d

493, 503 (Ky. 2015) (citing Spears v. Commonwealth, 30 S.W.3d 152, 154 (Ky.

2000)).

Posey argues that there was sufficient evidence to warrant an instruction

on first-degree manslaughter, with the triggering event being his finding out

Chelsea was pregnant with PJ ’ s child. He supports this assertion by pointing

to a police interview with Jason Lyons, Posey ’ s uncle, that Chelsea ’ s pregnancy

is probably what “ tipped him over the edge ” and led to Posey killing PJ. This

portion of the interview was played during Lyons ’ s testimony at trial. However,

Lyons did not state that he knew this definitively; he was speculating. Posey

also highlights testimony from the sheriff who went to find Posey on March 28,

2016, after Posey ’ s conversations with Judge Gill. The sheriff stated that Posey

told him Chelsea was pregnant. However, Chelsea ’ s own testimony established

that she was only eight or nine weeks pregnant at the time of PJ ’ s death on

July 24, 2016. The child was born in February 2017, making it impossible

that she was pregnant in March 2016. 4

Posey also points to his March 28, 2016 conversation with Judge Gill,

who testified at trial that Posey was distraught and wanted help through

4 We note that Posey ’ s brief refers to Posey finding out Chelsea was pregnant

sometime after June 20. When Posey cross-examined Chelsea, counsel elicited

testimony from her about when she discovered she was pregnant. Chelsea stated it

was sometime in June. Counsel asked whether it could have been June 20 when she

found out, and she said it was possible. It is unclear from the briefs what the

significance of June 20 is. Given the length of the trial, we were unable to discover

from the recordings a mention of June 20 outside of Chelsea ’ s testimony and a

mention of June 20 when Posey requested an EED instruction.

6counseling. Posey claims that his recorded phone conversation with Judge Gill

reveals that he thought Chelsea was pregnant. During this phone

conversation, which was played for the jury, Posey stated that PJ had “ messed

with ” Chelsea, but never stated that he believed her to be pregnant.

Posey told Judge Gill that he needed help before he went to the

“ penitentiary or the graveyard, ” because he refused to let someone keep

disrespecting him. He stated, “ I don ’ t want to do nothing to him because I got

kids and don ’ t want to leave them like that

. . . but if I got to I swear to

God

. . . . ” Judge Gill advised Posey to take a minute and think about the

consequences, to which Posey responded that he had done so. This March 28,

2016 conversation indicates that four months prior to the murder Posey had

considered taking action against either PJ or Chelsea that could cause him to

end up in jail. This phone conversation clearly undercuts the idea that Chelsea

and PJ ’ s relationship and the pregnancy were so sudden or shocking as to

override his judgment and compel him to kill PJ. He expressly considered

taking extreme action well before Chelsea became pregnant or he knew of her

pregnancy.

Further, there is nothing indicating that Posey ’ s state of mind was

temporary. The Commonwealth introduced Facebook posts and text messages

from Posey to PJ that involved numerous threats on PJ ’ s life. In a June 2015

reply to PJ ’ s mother identifying PJ in a photo, Posey commented “ look good in a

casket. ” Two posts from February 2016 threaten PJ ’ s life, with Posey stating

that PJ is not allowed in his neighborhood and instructing people that if they

7see PJ to call him. The posts also indicate that Posey would rather be a prime

suspect than a victim, stating that he would rather be “ judged by 12 then

carried by 6. ” In a July 14, 2016 post, made ten days before the murder, Posey

states that

before he gets booked for something petty, he would rather be

booked for murder, stating “ C if I can ’ t make #BREAKING NEWS. ” Posey also

sent numerous threats via text message to PJ, implying that he would kill him.

In a message from March 27, 2016, Posey threatened PJ, then stated “ not

guilty on the grounds of insanity. ” As the Commonwealth pointed out while

contesting Posey ’ s entitlement to an EED instruction, these messages indicate

Posey may have pre-meditated using EED as a defense. Overall, these posts

and messages covering a thirteen-month period before the murder reveal that

Posey contemplated extreme action long before Chelsea ’ s pregnancy.

The trial court is obligated to 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. ” Taylor v.

Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). This obligation extends to

lesser-included offenses and affirmative defenses but is dependent upon there

being sufficient evidence to warrant the giving of an instruction. Turner v.

Commonwealth, 544 S.W.3d 610, 625 (Ky. 2018). The only evidence of the

pregnancy being the triggering event is Lyons ’ s speculation that that ’ s what

“ tipped ” Posey “ over the edge ” and the sheriffs testimony that Posey told him

about the pregnancy, which would have been impossible as of March 2016

given the child ’ s birth in February 2017. “ The trial court has no duty to

8instruct on theories of the case that are unsupported by the evidence. ” Driver

v. Commonwealth, 361 S.W.3d 877, 888 (Ky. 2012). Additionally, an EED

instruction must be supported by definite, non-speculative evidence. Padgett

v. Commonwealth, 312 S.W.3d 336, 341 (Ky. 2010). Based on these standards,

there was not sufficient evidence to warrant an EED instruction with Chelsea ’ s

pregnancy as the triggering event.

Posey ’ s case is similar to Driver, 361 S.W.3d at 887, which also involved

a claim of error regarding the failure to instruct on EED. Driver was convicted

of first-degree assault after a physical altercation with his wife. Id. at 881.

Driver argued that he was entitled to an EED instruction because the

altercation stemmed from him first learning about his wife ’ s alleged affair that

night, causing him to lose his temper. Id. at 887. This Court held that Driver ’ s

assertion that he first learned of the affair that night was not supported by any

testimony presented at trial. Id. at 888. This Court stated:

Because the record does not disclose the situation and

circumstances relating to the disclosure of the affair

— whenever

and under whatever circumstances that may have been

— there

is no means of assessing whether those circumstances could

have reasonably and objectively provoked the outrage

necessary to obtain an EED instruction, and whether the

outrage could reasonably have still persisted, uninterrupted,

until the night of the assault. Therefore, we conclude that the

trial court properly declined the request to instruct the jury

upon EED.

Id. at 888-89.

Similarly, Posey points to no evidence to suggest that his learning of

Chelsea ’ s pregnancy, “ whenever and under whatever circumstances that may

9have been, ” id., provoked the outrage required for an EED instruction. While

the triggering act “ may or may not immediately precede the criminal act, it

must be sudden and uninterrupted. ” Keeling, 381 S.W.3d at 265. Posey did

not present sufficient evidence of the circumstances surrounding this situation

to merit an EED instruction, and accordingly, the trial court properly denied

the request to instruct the jury on first-degree manslaughter.

II. The Trial Court Did Not Err in Denying Posey ’ s Motion to

Admonish the Jury as to the Use of Threats.

Posey argues that the trial court should have admonished the juiy that

evidence of the threats Posey made to PJ were not evidence of his guilt.

“ Generally, evidence of prior threats and animosity of the defendant against the

victim is admissible as evidence of motive, intent or identity. ” Davis v.

Commonwealth, 147 S.W.3d 709, 722 (Ky. 2004). Under Kentucky Rule of

Evidence (KRE) 105(a), “ [w]hen evidence which is admissible as to one (1) party

or for one (1) purpose but not admissible as to another party or for another

purpose is admitted, the court, upon request, shall restrict the evidence to its

proper scope and admonish the jury accordingly. ” An alleged error under KRE

105 is subject to harmless error analysis. Soto v. Commonwealth, 139 S.W.3d

827, 859 (Ky. 2004). The inquiry is whether the error had substantial

influence. Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009).

In St. Clair v. Commonwealth, 140 S.W.3d 510, 559 (Ky. 2004), a

defendant waited until the close of evidence to request a limiting instruction as

to the appropriate purpose of certain evidence pursuant to KRE 105. This

Court held that

10[although the substantive distinction between admonitions

and instructions is not always clear or closely hewn to, we

interpret the first word of KRE 105(a), i.e., “ when, ” to mean

that the request for a “ limited purpose ” admonition must be

made at the time that the evidence in question is admitted and

no later than after the direct examination at which the evidence

is introduced.

Id. (internal citations omitted) (emphasis in original). Although it is within the

trial court ’ s discretion to determine when the admonition should be given, it

must be requested “ no later than after the direct examination ” where the

evidence is introduced. Id.

In this case, the Commonwealth introduced the threatening text

messages and Facebook posts through the testimony of a detective who helped

monitor Posey ’ s Facebook account periodically after Judge Gill alerted officers

about the ongoing situation between Posey and PJ. The detective testified at

trial on September 15 and 18, 2017. 5 The threatening messages were obtained

from PJ ’ s two cell phones, one of which was examined by a detective from the

Bowling Green police department and the other which was examined by the

detective that testified at Posey ’ s trial. Both detectives downloaded the text

messages, and both the text messages and the Facebook threats were

introduced for identification purposes during the detective ’ s testimony. They

were formally admitted into evidence outside the presence of the jury during a

5 The detective began testifying on September 15, 2017, and the threatening

messages and Facebook posts were introduced for identification purposes in her

September 15 testimony. After this testimony, the Commonwealth attempted to play

the video of Posey

’ s interview with the detective, but experienced technical difficulties.

Therefore, the court adjourned for the day and resumed with the detective ’ s testimony

on the next court day, which was September 18.

11hearing on the day the detective concluded her testimony. Posey did not

request the admonition either after or during the direct examination of the

detective or at the time the evidence was admitted.

Posey formally requested an admonition in writing and filed the motion

with the judge on September 19, 2017. The motion contains a note from the

judge, stating that the motion was denied both “ upon oral presentation

9/18/17 and now upon written submission. ” 6 Although the judge ’ s note states

an oral presentation was made on September 18, 2017, a review of the record

and testimony of the detective does not show an admonition was requested

during the detective ’ s testimony or at the end of direct examination as required

by KRE 105 and St. Clair. Therefore, the trial court appropriately denied the

belated request for an admonition.

III. No Discovery Violation Occurred Regarding Posey ’ s Prior

Convictions.

Posey ’ s trial was trifurcated because he was charged with being a

convicted felon in possession of a handgun. As part of discovery, the

Commonwealth provided Posey ’ s prior convictions of trafficking and possession

of a controlled substance to use as the basis for the handgun charge. After

hearing about these prior convictions, the jury found him guilty. Before the

penalty phase, the Commonwealth gave Posey certified records of prior

6 The only time an oral presentation of the motion could have been made is an

off-the-record meeting with counsel in chambers at the end of the day on September

18, 2017. This was not only after the detective testified but also after the

Commonwealth closed its case and after the defense called four witnesses of its own.

This was well after the detective ’ s testimony and unquestionably untimely.

12convictions for crimes other than the prior drug convictions, such as menacing,

fourth-degree assault, criminal mischief and terroristic threatening. In a bench

conference, Posey argued that the other convictions should not be admitted

since they were just presented to him and he was unable to prepare properly.

The prosecutor responded that she had just received the records, and that the

prior convictions were available to the defense as well, so it was not something

the defense could not have known about it. The judge determined that the

defense was not claiming they were surprised by the new convictions, and that

Posey ’ s record was available to them as well. Accordingly, the trial court

allowed the Commonwealth to introduce the additional prior convictions in the

penalty phase.

In the beginning stages of this case, Posey requested discovery under

Rule of Criminal Procedure (RCr) 7.24(2), which states

[t]he court may order the attorney for the Commonwealth to

permit the defendant to inspect and copy or photograph books,

papers, documents, data and data compilations or tangible

objects, or copies or portions thereof, that are in the

possession, custody or control of the Commonwealth, upon a showing that the items sought may be material to the

preparation of the defense and that the request is reasonable.

On appeal, Posey argues that the trial court should have excluded the prior

convictions that were provided to the defense before the penalty phase because

the late production constituted a discovery violation.

We have stated that the premise underlying RCr 7.24 is not

only to inform the defendant of her prior convictions (of which

she should be aware), but to inform her that the

Commonwealth has knowledge thereof. “ This ensures that the

defendant's counsel is capable of putting on an effective

defense, as per the intent of the rule. ”

13Baumia v. Commonwealth, 402 S.W.3d 530, 545 (Ky. 2013) (internal citation

omitted). Clearly, pursuant to the trial court ’ s discove r y order, Posey was

entitled to production of the prior convictions the Commonwealth sought to

introduce before sentencing. The prosecutor stated that she had been trying to

obtain the records and had just received them. Although there was little

discussion about why the records were not made available until so late in the

trial, the Commonwealth was obligated to disclose the convictions as soon as

they were made available. The only information in the record regarding when

the Commonwealth obtained the prior convictions is the prosecutor ’ s statement

that she just received them. Without more information or evidence to the

contrary, we cannot say that the Commonwealth committed a discovery

violation.

Although Posey did not have much time between when the prior

conviction records were presented to him and the penalty phase of trial, we

also cannot say that he was prejudiced assuming a discovery violation did

occur. “ [A] discovery violation serves as sufficient justification for setting aside

a conviction when there is a reasonable probability that if the evidence were

disclosed [or, in this case, disclosed in a more timely manner] the result would

have been different. ” Chestnut v. Commonwealth, 250 S.W.3d 288, 297 (Ky.

2008). Posey argues that his sentence may have been different had the

evidence been disclosed sooner, but this argument is unpersuasive. The

Commonwealth simply produced a witness who read the records regarding the

prior convictions, and no overt emphasis was placed on the prior crimes in the

14Commonwealth ’ s closing argument during the penalty phase. Additionally, the

prior convictions were evidence of comparatively minor crimes considering the

jury had just found Posey guilty of murder. Since Posey has not shown

prejudice, the trial court ’ s decision to allow the Commonwealth to introduce his

prior convictions in the penalty phase cannot justify setting aside his

conviction or sentence even assuming a discovery violation occurred.

CONCLUSION

For the foregoing reasons, the judgment and sentence of the trial court is

affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

Emily Lucas

Assistant Attorney General

Office of Criminal Appeals

Office of the Attorney General

15