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RENDERED: DECEMBER 16, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0289-MR

EZELL R. MILLER APPELLANT

ON APPEAL FROM GRAVES CIRCUIT COURT

V. HONORABLE TIMOTHY C. STARK, JUDGE 

NO. 16-CR-0087 & 19-CR-0463

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Ezell Miller (Miller) was found guilty of murder, first-degree burglary, two 

counts of first-degree wanton endangerment, tampering with physical evidence,

assault under extreme emotional disturbance, and being a first-degree 

persistent felony offender. He now appeals his resulting sentence of life 

imprisonment without the possibility of parole as a matter of right.1

I. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of February 28, 2016, police were dispatched 

to the home of twenty-two-year-old Lauren Alexander (Lauren). Upon arrival, 

one officer’s body camera captured Miller standing on Lauren’s porch holding 

her two-year-old son and two-month-old daughter. Miller immediately told the 

officer, “they tried to rob me, they shot my bitch.” The responding officers 

 

1 Ky. Const. § 110(2)(b). 
2

observed that the front door of the home appeared to have been kicked in. 

They then found Lauren, alive, on the floor in the middle of the threshold 

between the living room and kitchen. She had sustained a single gunshot 

wound to her head fired between one to four inches away according to the 

medical examiner’s subsequent findings. She was flown to a hospital in 

Tennessee where she died the following day.

Miller lived in Lauren’s neighborhood with his girlfriend Brianna Craft 

(Brianna). Miller and Lauren were never in a serious dating relationship, but 

they “messed around.” During one of his interviews with the police, Miller 

stated that he would go see Lauren while Brianna was at work. 

At trial, four of Miller’s statements to police about what occurred the 

morning of the shooting were played for the jury. His first statement was taken 

at Lauren’s home when the police first arrived; his second and third statements 

were formal interviews on the day of the shooting, one in the morning and one 

in the evening; and his final statement was a formal interview taken two days 

after the shooting. His first three statements included basically the same story 

with some variation, while his final statement was completely different from the 

previous three with regard to the shooting itself. 

In his first three statements, Miller told police he was at a party on the 

night of February 27 into the early morning of February 28. Brianna picked 

him up to take him home, and they drove past Lauren’s house on the way

there. Miller saw a vehicle that was not Lauren’s parked in Lauren’s driveway. 

Miller apparently suspected, and was correct, that Lauren had a male friend 
3

over. The man, Tresviante “Mata” McCampbell (Mata), and Miller did not know 

each other. Miller went to Brianna’s house and then walked to Lauren’s house. 

He said that when he arrived at Lauren’s house he kicked her front door in 

because he was drunk and upset. He said that when he got there Lauren was 

standing in the living room feeding her daughter a bottle, and her son was 

asleep in a playpen in Lauren’s bedroom. In his first two statements to police, 

Miller said he was not upset that Mata was there. But, in his third interview 

he admitted that he was mad because Lauren had lied to him by previously 

telling him she was not seeing Mata. Miller alternated between saying that he 

and Mata “had words” and that Miller “slapped the shit out of him,” and saying 

that he and Mata did not argue and Mata “just up and left” when Miller got 

there. Miller said that a couple of minutes after Mata left, a masked man with 

a pistol barged into the home and told them to get down. Miller claimed that 

Lauren handed him her daughter, and charged the gunman. The gunman got 

nervous when Lauren charged him, accidentally shot her, and then left.

In Miller’s final statement to police he said that he went to Lauren’s

house and, after Mata left, he and Lauren were arguing about Mata being 

there. Miller said he put his gun down, and then Lauren put her baby down 

and went for the gun. He said they fought over the gun and Lauren was shot

accidentally. He said he told the police “the stupidest lie” in his previous 

statements. 

Miller also told the police that he could not call 911 after the shooting 

because his phone was dead, so he went to Connie Saxton’s (Connie) house to 
4

get either a battery or a phone charger. Connie lived next door to Lauren and 

testified that, prior to the events of that morning, Miller was like a brother to 

her. Connie said that on the morning of the shooting she woke up to three 

missed calls from Miller that came in at 5:47 a.m., 5:48 a.m., and 5:49 a.m., 

respectively. She tried to call Miller back at 6:24 a.m., but he did not answer. 

Very shortly after she tried to call him back, he came to her house with

Brianna. He called 911 at 6:30 a.m. while at Connie’s house. Connie said that 

Miller looked “shook up” and told her that someone had kicked in the door to 

Lauren’s house and tried to rob him. Minutes later Miller told her that he and 

Lauren were wrestling for the gun and it accidentally went off. 

Mata told police that he and Lauren were asleep in bed when Lauren’s 

phone started to ring. He then heard someone outside telling Lauren to open 

the door, but she refused. Eventually, a man he did not know kicked in the 

door. By the time Mata sat up in bed, the man had a gun pointed at him.2 The 

man was asking Lauren, “is this what you want? Is this the [man] you want?” 

Mata told Lauren to take the children and go into the kitchen, and she did. 

The man told Mata that he would kill him while he had the gun pointed at his 

face. The man eventually went into the kitchen with Lauren, and Mata got his 

belongings and left. Mata said the man pistol whipped him as he was leaving. 

Mata gave the police a description of the man that was consistent with Miller’s 

description. He also said that Miller carried a “big gun” with an “infrared 

 

2 The doorway to Lauren’s bedroom was to the immediate left of the front door. 
5

beam.” At trial, Mata said that he did not remember the events of that 

morning, did not recognize the gun, and he did not positively identify Miller. 

During their investigation, the police obtained a search warrant for 

Brianna’s home. They discovered a Glock Model 31 .357 Sig3 with a red laser 

sight wrapped in a t-shirt just inside the door of the home’s crawl space. 

Although the exact time of the shooting could not be determined, the 

Commonwealth posited that Miller shot Lauren just before making his first call 

to Connie at 5:47 that morning. And, in the forty-three minutes between his 

first call to Connie and the 911 call at 6:30, Miller walked to Brianna’s house to 

hide the gun, and then went back to Connie’s house with Brianna to call 911. 

A firearms examiner with the Kentucky State Police testified that the 

spent .357 Sig cartridge case found in Lauren’s home was fired from the gun 

found hidden under Brianna’s house. In addition, forensic testing showed that 

blood found on Miller’s jeans, shoes, and gun matched Lauren’s DNA.

Miller did not present any evidence, but during closing arguments his 

counsel asserted that the shooting was an accident. Specifically, he implied 

that Lauren accidentally shot herself while she and Miller were fighting over the 

gun. 

The jury ultimately convicted Miller of Lauren’s murder and the firstdegree burglary of her home. It also convicted him of two counts of first-degree 

wanton endangerment in relation to her two children who were present during 

 

3 The Glock Model 31 is manufactured by Glock but uses a Sig Sauer .357 

cartridge. 
6

the shooting, assaulting Mata under extreme emotional disturbance, and 

tampering with physical evidence by hiding the murder weapon. The jury 

further found him to be a first-degree persistent felony offender, and sentenced 

him to life without the possibility of parole based upon its findings that the 

requirements of KRS4 532.025(2)(a)1 and 25 were met. 

Additional facts are discussed below as necessary. 

II. ANALYSIS 

A. Prosecutorial Vindictiveness 

Miller’s first allegation of error is that the Commonwealth indicted him 

on additional charges solely because he refused to stipulate to the anticipated 

testimony of a Kentucky State Police forensic scientist. He therefore argues 

that the second indictment was the result of prosecutorial vindictiveness, and 

that the trial court erred by allowing the two indictments to be joined for trial. 

For context, a brief overview of the pretrial timeline of this case is 

needed. On April 14, 2016, Miller was indicted, in pertinent part, for murder, 

first-degree burglary, two counts of wanton endangerment, tampering with 

physical evidence, and being a first-degree persistent felony offender. Nearly 

three years later, in January of 2019, a new Commonwealth’s Attorney took 

office. A month after taking office, the new Commonwealth’s Attorney filed a 

 

4 Kentucky Revised Statute. 

5 Specifically, the jury found that “the offense of murder was committed by a 

person who has a substantial history of serious assaultive criminal convictions” and 

that “the offense of murder . . . was committed while the offender was engaged in the 

commission of . . . burglary in the first degree[.]” KRS 532.025(1)(a)1 and 2. 
7

notice of intent to seek an enhanced penalty under KRS 532.025; specifically, 

life imprisonment without the possibility of parole or life imprisonment without 

the possibility of parole for twenty-five years. Because of this, the trial, which 

was originally scheduled for March of 2019, was pushed back indefinitely 

pending the conclusion of the defense’s mitigation investigation. During a pretrial hearing on April 19, 2019, the court set the ultimate trial date of February 

4-7, 2020, without objection from the defense. 

At the next pre-trial hearing on December 2, 2019, the Commonwealth

announced that it intended to seek another indictment against Miller for 

second-degree assault and terroristic threatening for his actions against Mata. 

It planned to seek that indictment during the next grand jury session on 

December 13, 2019. The Commonwealth also put the court on notice that it 

was informed earlier that morning that the defense would not stipulate to 

evidence that was anticipated to be entered through a former Kentucky State 

Police forensic scientist, Erica Fite (Erica). The Commonwealth said Erica now 

lived in Washington, and because the defense would not stipulate, the 

Commonwealth had to figure out how to get her testimony in, either by 

deposition or getting funds to procure her presence at trial. 

On December 13, the Commonwealth successfully indicted Miller for 

second-degree assault and terroristic threatening.

6 It then filed a motion for 

joinder. At the final pretrial hearing on January 1, 2020, defense counsel 

 

6 The count of terroristic threatening was ultimately dismissed. 
8

objected to the two indictments being joined for trial. Defense counsel argued

that they were now one month away from trial in a case that had been pending 

for years. Miller’s counsel accused the Commonwealth of piling on charges at 

the eleventh hour and of trying Miller “by ambush.” He asserted that the two 

new charges should therefore be tried separately. The defense never argued 

that joinder was improper because the Commonwealth only sought the second 

indictment to punish Miller for refusing to stipulate to Erica’s testimony. 

The trial court noted that the facts relating to the crimes against Mata

were known to the defense, and that the facts set out in the new indictment 

could be introduced at the trial on the first indictment. In addition, the 

Commonwealth made its intention to seek the second indictment known on 

December 2, 2019, two months prior to trial. It therefore granted the 

Commonwealth’s motion for joinder. 

It has long been part of our jurisprudence that “specific grounds not 

raised before the trial court, but raised for the first time on appeal will not 

support a favorable ruling on appeal. Most simply put, a new theory of error 

cannot be raised for the first time on appeal.”7 Here, the factual basis for the 

argument Miller presents to this Court, i.e., that the second indictment was 

punishment for the defense’s refusal to stipulate to Erica’s testimony, was 

crystalized during the December 2 hearing. The defense had ample time to 

formulate that argument and present it to the trial court during the January 1 

 

7 St. Clair v. Commonwealth, 451 S.W.3d 597, 613 (Ky. 2014) (internal quotation 

marks omitted). 
9

hearing when the motion for joinder was considered. It did not do so. We 

therefore hold that Miller’s argument that the prosecutorial vindictiveness 

occurred in this case is unpreserved. Miller did not request palpable error 

review of this issue under RCr8 10.26. 

Nevertheless, Miller has failed to prove that prosecutorial vindictiveness 

occurred. “Prosecutorial vindictiveness is a constitutional doctrine based on 

the premise that a person may not be punished for exercising a protected 

statutory or constitutional right. Prosecutorial vindictiveness can manifest 

itself in two ways: actual vindictiveness and presumed vindictiveness based 

upon the facts and circumstances of the case.”9 A presumption of 

prosecutorial vindictiveness is inapplicable to the pretrial setting.

10 Therefore, 

Miller must prove actual vindictiveness by the prosecution, meaning he must 

produce “objective evidence that [the] prosecutor acted in order to punish [him]

for standing on his legal rights.”11 That objective evidence is not present in the 

record before us. 

Miller also asserts that the trial court erred by granting the 

Commonwealth’s motion for joinder of the two indictments. He contends that

 

8 Kentucky Rule of Criminal Procedure. 

9 Commonwealth v. Perry, 507 S.W.3d 588, 592 (Ky. App. 2016) (internal 

quotation marks and citations omitted).

10 Hunt v. Commonwealth, 304 S.W.3d 15, 32 (Ky. 2009) (“Because the 

prosecutorial conduct complained of by Hunt occurred in a pretrial setting, the 

presumption of vindictiveness doctrine is inapplicable.”); Commonwealth v. Leap, 179 

S.W.3d 809, 814 (Ky. 2005) (“[W]e are not disposed to extend the presumption of 

‘prosecutorial vindictiveness’ . . . to the pretrial setting.”)

11 Perry, 507 S.W.3d at 592.
10

the joinder was improper because the second indictment was sought solely for 

vindictive purposes by the Commonwealth. Again, this was not the reason 

presented to the trial court by the defense, and the trial court did not have the 

opportunity to consider and rule on that argument. Accordingly, the issue is 

unpreserved, and Miller did not request palpable error review. 

Regardless, the trial court did not err by granting the motion for joinder.

Under RCr 9.12, “[t]he court may order two (2) or more indictments, to be tried 

together . . . if more than one (1), could have been joined in a single

indictment[.]” In other words, “[j]oinder is proper where the two crimes are 

closely related in character, circumstance and time.”

12 In this case, the crimes

committed against Mata occurred during the commission of the crimes against 

Lauren and her children. Those crimes could have therefore been brought 

under a single indictment with the original charges, and the joinder was 

proper.

B. Educating the jury during voir dire. 

Miller’s next allegation of error is that the Commonwealth improperly 

educated potential jurors on legal concepts during voir dire. 

The Commonwealth began its voir dire by providing a brief overview of 

the facts of the case. It then began to discuss the crimes Miller had been 

charged with as follows:

the defendant has been charged with the following crimes: the 

murder of Lauren Brooke Alexander. Under Kentucky law, a 

person is guilty of murder when, with intent to cause death, he 

 

12 Debruler v. Commonwealth, 231 S.W.3d 752, 760 (Ky. 2007).
11

causes the death of that person or a third person. But murder can 

also include when a person wantonly engages in conduct which 

creates a grave risk of death to another person, and thereby causes 

the death of another person under circumstances manifesting 

extreme indifference to human life. The defendant is also charged 

with burglary in the first degree. A person is guilty of burglary in 

the first degree when they enter or remain in the residence of 

another without permission knowing they don’t have permission—

The defense objected on the grounds that the Commonwealth’s voir dire 

sounded more like an opening statement and that they had yet to ask a 

question. The Commonwealth responded that it could not meaningfully 

question the venire if it did not know the serious nature of the charges. The 

defense argued that those things could be covered in its opening statement, to 

which the Commonwealth responded, “before you can get to opening statement 

you have to be sure they can serve impartially on the jury, and voir dire is also 

a chance to educate them on the law to make sure they can do that.”

The trial court pointed out that it had never seen anyone go over every 

element of every offense in voir dire. The Commonwealth said it did not intend 

to discuss every element of the offenses, and further contended that many lay 

people do not know the difference between burglary and robbery, nor do they 

know what wanton endangerment is. Therefore, discussing the elements of the

crimes is reasonable. The defense responded that, if that was the case, it 

wanted the court to require that the Commonwealth read the statutory 

elements of the crimes verbatim. The court ruled: “if we could move a little 

quicker through the counts, I don’t mind you identifying the counts. But I 

don’t want to go into a lot of detail about it at this time.” The Commonwealth 

then continued:
12

we were talking about burglary . . . enter or remain in a residence 

without permission knowing they don’t have permission with 

intent to commit a crime, while entering they’re armed with a 

deadly weapon. We have two counts of wanton endangerment in 

the first degree in this case. A person is guilty of wanton 

endangerment in the first degree when, manifesting extreme 

indifference to the value of human life, he wantonly engages in 

conduct which creates a substantial danger of death or serious 

physical injury to another person. Here we have two counts of 

endangering the life of . . . Lauren’s two-year-old son, and . . .

Lauren’s two-month-old daughter, who were present in the home 

when their mother was shot in the face. We have a charge of 

tampering with physical evidence. Very briefly, a person tampers 

with evidence when they conceal or remove that evidence when 

they believe an official proceeding is about to begin in order to 

impair its availability. Here, the defendant is accused of 

concealing and hiding the murder weapon. Assault in the second 

degree, based on the intentional strike of Mr. McCampbell, “Mata,” 

in the head with a loaded Glock handgun causing physical injury. 

Lastly, a count of terroristic threatening based on the threat to kill 

Mata. Ladies and Gentlemen that was an extremely brief 

description of the tragic events of this case. Throughout the trial 

you will hear in detail about each one of those and you will receive 

thorough jury instructions regarding the law. Again, I only 

mention it now so you can begin to understand why we’re here and 

what this case is going to be about.

The Commonwealth did not ask any questions that related directly back to its 

discussion of the elements of the offenses. But it did ask the blanket question 

“at this point is there anything weighing on your heart that maybe I haven’t 

thought to ask you that you know is going to make it very difficult to give the 

defendant a fair trial knowing what you know right now?”

As mentioned, during the side bench on this issue, the defense requested 

that if the Commonwealth was going to be permitted to discuss the elements of 

the crimes, that it do so verbatim. The defense now argues before this Court 

that the Commonwealth’s voir dire was reversible error because it discussed 
13

the statutory elements of the charged offenses. Further, the Commonwealth 

stated directly that its purpose was to “educate” the venire on the elements of 

the crimes in order to determine which of them could serve impartially on the 

jury. The defense never argued, as it does to this Court, that only the trial 

court may educate the jury on legal concepts. We therefore hold that the 

defense has attempted to “feed one can of worms to the trial judge and another 

to the appellate court,” rendering this issue unpreserved.13 Miller did not 

request palpable error review. 

Nevertheless, while it is true that voir dire “is not an occasion for counsel 

to educate the juror panel regarding legal concepts,”14 this Court has also 

recognized that “in order to fairly exercise the right of peremptory challenges 

and challenges for cause, it is sometimes necessary to introduce legal concepts 

to the jury panel to ascertain if any prospective juror is unable or unwilling to 

adhere to the concept.”15 In Rogers v. Commonwealth, defense counsel 

attempted to ask the venire about the different standards of proof for criminal 

and civil trials.16 The Commonwealth objected to the question, and the defense 

responded that it was trying to educate the jury about the fact that criminal 

trials had a different standard of proof.17 The trial court sustained the 

 

13 Henson v. Commonwealth, 20 S.W.3d 466, 470 (Ky. 1999).

14 Rogers v. Commonwealth, 315 S.W.3d 303, 307 (Ky. 2010).

15 Id. 

16 Id. at 306.

17 Id. 
14

Commonwealth’s objection, and this Court affirmed.18 The Rogers Court 

reasoned that

Appellant's counsel . . . never suggested to the trial court that he 

wanted to inquire if any juror would be unable to follow the 

criminal standard of proof beyond a reasonable doubt or would 

instead be inclined to apply the standard used in civil trials. Had 

he done so, the trial court's refusal to allow the inquiry would be 

subject to harmless error analysis. Because our review of the 

record discloses that Appellant's sole purpose in raising the matter 

during voir dire was to educate the jury, rather than to elicit 

potentially disqualifying information about the jury, we conclude 

that the trial court did not err when it terminated counsel's 

discussion of the issue.

19

In this case, the Commonwealth acknowledged that it was attempting to 

educate the venire about the statutory elements of the alleged crimes. 

However, it told the court that its purpose in doing so was to identify potential 

jurors that could not be impartial. Therefore, while the Commonwealth’s 

actions were certainly unusual, given our holding in Rogers and the broad 

discretion afforded to trial courts in controlling voir dire,20 we cannot hold that 

the trial court erred by allowing the Commonwealth to inform the venire of the 

elements of the charged offenses. 

C. Evidentiary Issues 

Miller’s final arguments concern the trial court’s admission of several 

pieces of evidence. Namely, evidence that: (1) Lauren was afraid of Miller and

 

18 Id. 

19 Id. at 309 (internal citation omitted).

20 Id. at 306.
15

wanted to get away from him; (2) Miller stole a key from Lauren’s home; and (3) 

Miller “stalked” Lauren before her death. 

(1) Lauren was afraid of Miller, wanted to get away from him, and 

was looking for a new place to live. 

Miller first asserts that several pieces of testimony introduced through 

Lauren’s friends were inadmissible hearsay, and that the trial court therefore 

erred by admitting them. Specifically, he argues that the following statements 

were admitted in error: (1) Audrianna Johnson’s (Audrianna) testimony that 

Lauren was afraid of Miller and wanted to get away from Miller; (2) Antavia 

Kirby’s (Antavia) testimony that Lauren was afraid of Miller and wanted to get 

away from him but did not know how; and (3) Haley Kendall’s (Haley) testimony 

that Lauren was afraid of Miller and wanted to find a new place to live to get 

away from him. 

Prior to trial, the Commonwealth provided notice pursuant to KRE21

404(c)22 that it intended to introduce prior bad acts testimony as part of its 

case in chief. In relevant part, its notice stated: 

The Commonwealth intends to call both [Antavia] and [Audrianna]

to testify concerning a discussion they collectively had with the 

victim, Lauren Alexander, shortly before her death . . . [Antavia]

describes this discussion as a planned conversation to address the 

safety of Lauren Alexander and the danger posed to her by [Miller]. 

[Audrianna] states that this discussion happened the day before 

the shooting. [Antavia] is unsure as to the exact date but believes 

this conversation had to have occurred within 4 days of the 

shooting. 

 

21 Kentucky Rule of Evidence. 

22 “In a criminal case, if the prosecution intends to introduce evidence pursuant 

to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable 

pretrial notice to the defendant of its intention to offer such evidence.” KRE 404(c).
16

This discussion consisted of Lauren expressing her desire to get 

away from the [Miller] . . . Both [Antavia] and [Audrianna] will 

testify that they believed Lauren feared [Miller]. [. . .]

The Commonwealth asserts that this information will be presented 

for the sole purpose of illustrating Lauren Alexanders’ (sic) state of 

mind within hours of her murder. The Commonwealth asserts 

that this testimony is admissible as an exception to KRE 802, the 

rule against hearsay, as the testimony would clearly fall under the 

Present Sense Impression exception . . . The Commonwealth 

anticipates that [Miller] will not deny his involvement in the 

shooting but will claim that the shooting occurred accidentally. 

The probative value of this testimony, as a whole, is that it enables 

the jury to understand how Lauren was perceiving her relationship 

with [Miller].

The defense filed a written objection to the Commonwealth’s notice. It argued, 

in relevant part, as follows:

Statement 1 (that the alleged victim wanted to get away from 

[Miller]) is clearly hearsay as defined by KRE 801, and does not fall 

within any exceptions listed in KRE 801A, 803, or 804, and 

therefore should be excluded. 

[. . .]

Statement 4 (that both [Audrianna and [Antavia] believed that the 

alleged victim was afraid of [Miller]) may be admissible as lay 

opinion under KRE 701. However, unlike expert opinion, lay 

opinion cannot be based on hearsay . . . This statement should be 

excluded unless and until the Commonwealth can lay [a] proper 

foundation for its admission. 

[. . .]

Statement 6 (that the alleged victim was looking for another place 

to live) is clearly hearsay as defined by KRE 801, and does not fall 

within any exceptions listed in KRE 801A, 803, and 804, and 

therefore should be excluded.

On the morning of the first day of trial, the trial court made its ruling regarding 

the KRE 404(c) notice. The court found that Lauren’s fear of the defendant was 
17

admissible under the present sense impression exception to hearsay, and the 

Commonwealth could accordingly admit evidence of both her fear and the basis 

for that fear. With that said, we now address each witness’ testimony in turn.

Miller argues that the following portions of Audrianna’s testimony were 

admitted in error:23

Q: Tell the jury how you would describe [Lauren and Miller’s]

relationship.

A: They were messin’ off for a little bit. But, in the midst of it, she 

found out a lot of things and she was trying her best to get away 

from him.

[. . .]

Q: How close in time to February 28, 2016, was Lauren also 

spending time with [Miller]?

A: She had tried to get away from him like a couple of weeks before

it happened. She was trying to reach out to a lot of people to try to 

figure out how to get away from him and what would be the right 

way to go about doing it. 

Q: Do you know why, did she tell you why she was trying to get 

away?

A: Yes, she said that she was scared and that he had stolen a key 

off of her dresser.

24

 

23 Miller’s allegations of error regarding Audrianna’s testimony were properly 

preserved by his written objection to the Commonwealth’s KRE 404(c) notice. We will 

therefore review this issue for abuse of discretion. Mason v. Commonwealth, 559 

S.W.3d 337, 342 (Ky. 2018). A trial court abuses its discretion when it rules in a way 

that is unreasonable, unfair, or unsupported by sound legal principles. 

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

24 (Emphasis added). 
18

Audrianna further testified that in the weeks leading up to Lauren’s death, 

Lauren spoke with her three times about how scared she was of Miller, and 

that the last time Lauren spoke with her about her fear of Miller was the day 

before she died. 

Miller first argues that Audrianna’s testimony that Lauren wanted to get 

away from Miller did not meet the requirements for the present sense 

impression exception to hearsay because Audrianna did not provide a time 

frame for when Lauren told her she wanted to get away from Miller other than 

“a couple of weeks before she died.” We agree. 

The present sense impression exception to the hearsay rule is housed in 

KRE 803(1): “The following are not excluded by the hearsay rules, even though 

the declarant is available as a witness: (1) Present sense impression. A 

statement describing or explaining an event or condition made while the 

declarant was perceiving the event or condition, or immediately thereafter.” As 

the wording of the exception indicates, time is a key element to whether it is 

applicable.25 The underlying theory of the rule is that “substantial 

contemporaneity of event and statement negative the likelihood of deliberate or 

conscious misrepresentation.”26 To be a present sense impression, “the 

statement must be made while the declarant is observing the event,”27 or 

immediately thereafter. The general statements that Lauren “was trying her 

 

25 Jarvis v. Commonwealth, 960 S.W.2d 466, 469 (Ky. 1998).

26 Id. 

27 Bray v. Commonwealth, 68 S.W.3d 375, 381 (Ky. 2002).
19

best to get away from [Miller],” and that she was trying to get away from him “a 

couple of weeks before” her death were not statements about Lauren’s 

observations. Rather, they concerned Lauren’s state of mind and therefore are 

not admissible under KRE 803(1).28 The trial court was therefore incorrect in 

determining that the statements were admissible under KRE 803(1) as present

sense impressions.

However, “it is well-settled that an appellate court may affirm a lower 

court for any reason supported by the record.”

29 And, while Lauren’s 

statements to Audrianna were not admissible as present sense impressions

under KRE 803(1), they were admissible under KRE 803(3)’s state of mind 

exception to hearsay. Miller asserts that the statements were not admissible 

under KRE 803(3) because the exception only applies to someone that is about 

to take imminent action. We disagree. KRE 803(3) directs: 

The following are not excluded by the hearsay rules, even though 

the declarant is available as a witness:

(3) Then existing mental, emotional, or physical 

condition. A statement of the declarant's then existing 

state of mind, emotion, sensation, or physical 

condition (such as intent, plan, motive, design, mental 

feeling, pain, and bodily health), but not including a 

statement of memory or belief to prove the fact 

remembered or believed unless it relates to the 

execution, revocation, identification, or terms of 

declarant's will.

 

28 See id. (holding that the victim’s mother’s statement that she was scared for 

the victim “described her emotional state at the moment of Appellant's approach,” and 

therefore was not a present sense impression because “she was not observing an event 

or condition by her statements”).

29 See, e.g., McCloud v. Commonwealth, 286 S.W.3d 780, 786 n. 19 (Ky. 2009).
20

The crucial component of the state of mind exception is not that the declarant 

is about to take imminent action. Rather, the key is the

contemporaneity of the declarant's state of mind and the statement 

describing it . . . [the exception] leaves no room for the use of a 

statement describing a state of mind that existed at some early 

time. The statement cannot be about a “past fact,” but must 

instead cast light upon . . . future intentions, which includes 

statements of present or then-existing mental states.30

In Dillon v. Commonwealth, this Court held that a statement by a murder 

victim about her intention to move to a different state without the defendant 

because she was afraid of him was “precisely the type of comment that casts 

light on the future rather than a past act.”31 Here, Lauren’s statements to 

Audrianna that she was trying to get away from Miller cast light on Lauren’s

intention to do so at some point in the future. Therefore, the statements were 

admissible under the state of mind exception to hearsay. But that does not 

end the inquiry. 

Although the statements satisfy KRE 803(3), they must also satisfy the 

rules of relevance. Specifically, they must be relevant, i.e., they must have 

“any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence.”32 And, their probative value must not be substantially

 

30 Dillon v. Commonwealth, 475 S.W.3d 1, 22-23 (Ky. 2015) (internal quotation 

marks and citations omitted). 

31 Id. at 23. 

32 KRE 401. 
21

outweighed by the danger of undue prejudice to the defendant.33 The Dillon

Court held that the victim’s statement that she intended to move out of the 

state because she feared the defendant was relevant; it reasoned:

These statements were relevant to prove [the victim’s] fear of [the 

defendant] . . . [W]hen a defendant claims self-defense or accident, 

as [the defendant] did, the victim’s fear of the defendant becomes 

an issue in the case, and evidence of that state of mind is relevant. 

[The victim’s] statements that she intended to move to Indiana out 

of fear of [the defendant] were therefore relevant.34

In this case, Miller claimed that Lauren was shot accidentally during their 

struggle over the gun. Lauren’s fear of Miller accordingly became an issue in 

the case. Her desire to get away from Miller was evidence of her fear and was 

accordingly relevant. Miller argues that the evidence’s prejudicial effect 

presumptively outweighed its probative value because the jury imposed the 

maximum sentence of life imprisonment without the possibility of parole, citing 

Taulbee v. Commonwealth.

35 However, in this case, it is more likely that the 

jury imposed the maximum sentence based on the nature of the crime, the 

strength of the evidence, and Miller’s criminal history. As a result, we hold 

 

33 KRE 403. 

34 Dillon, 475 S.W.3d at 23.

35 438 S.W.2d 777, 778 (Ky. 1969). We note that Taulbee solely concerned a 

prosecutor’s inflammatory statements during closing argument, and no published 

case of this Court has ever interpreted it to hold that prejudice is presumed any time 

the maximum sentence is imposed; however, several unpublished appellate court 

decisions have. See West v. Commonwealth, No. 2011-SC-000629-MR, 2013 WL 

3155835, at *7 (Ky. June 20, 2013); Gibson v. Commonwealth, No. 2018-CA-001723-

MR, 2020 WL 5084278, at *4 (Ky. App. Aug. 28, 2020); Sloas v. Commonwealth, 2015-

CA-001183-MR, 2018 WL 6602098, at *4 (Ky. App. Dec. 14, 2018); Gaunt v. 

Commonwealth, 2011-CA-000132-MR, 2012 WL 876770, at *6 (Ky. App. Mar. 16, 

2012).
22

that any presumed prejudice resulting from the admission of Audrianna’s 

testimony was not substantially outweighed by its probative value. 

Consequently, the trial court did not abuse its discretion by admitting it. 

Miller next argues that Audrianna’s testimony that Lauren “said that she 

was scared” of Miller did not qualify under the state of mind exception to 

hearsay. In Bray v. Commonwealth, this Court noted that “[s]tatements of fear 

may be admissible pursuant to KRE 803(3)” if those statements otherwise 

satisfy the rules of relevancy.36 In particular, 

[w]here a victim's state of mind is not at issue, the testimony is not 

allowed to be admitted into evidence. Specifically, where a 

defendant did not claim self-defense, an accidental death, or 

suicide, such statements usually have little relevancy except 

toward providing a strong inference of appellant's intent, actions or 

culpability.37

Here, Miller asserted that Lauren’s death was accidental. And, Audrianna did 

not testify that Lauren told her that she was afraid of Miller at some point in 

the past. Rather, Lauren expressed to Audrianna her then-current feelings of 

fear towards Miller. Therefore, Audrianna’s testimony that Lauren was scared 

of Miller satisfied both the state of mind exception to hearsay and the rules of 

relevancy. And, for the reasons already articulated, the evidence’s probative

 

36 68 S.W.3d 375, 381 (Ky. 2002).

37 Id. at 381-82 (quoting Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 

1996), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 

2008)) (internal quotation marks omitted). 
23

value was not substantially outweighed by any prejudicial effect it may have 

had. Accordingly, the trial court did not err. 

Miller next argues that the trial court abused its discretion38 by allowing 

Antavia to testify to the following:

Q: Did Lauren ever express any concerns to you about [Miller]?

A: Yeah.

Q: Can you tell the jury about those?

A: She was just worried a little bit, a little scared at one point. She 

just kind of wanted to get out and she didn’t know how.

Q: How close in time to February 28 did she express those feelings 

to you?

A: Well the day before I’d actually had Audrianna come over to my 

house and explain some things to her. 

Q: So you and Audrianna had a conversation with Lauren the day 

before she was shot?

A: Yes. 

Q: And in that conversation did she express some concerns? 

A: Yes.39

Miller essentially makes the same arguments against the foregoing testimony

that he made against Audrianna’s testimony. Namely, that Lauren’s desire to 

get away from Miller did not qualify as a present sense impression because it 

 

38 This allegation of error was preserved by Miller’s objection to the 

Commonwealth’s KRE 404(c) notice. We therefore review it for abuse of discretion. 

Mason, 559 S.W.3d at 342. A trial court abuses its discretion when it rules in a way 

that is unreasonable, unfair, or unsupported by sound legal principles. English, 993 

S.W.2d at 945. 

39 (Emphasis added). 
24

did not involve Lauren contemporaneously describing an event or condition as 

she was perceiving it or immediately thereafter, and it did not qualify under the 

state of mind exception because that statement concerned Lauren’s past 

condition. In addition, Miller again asserts that Lauren’s fear of Miller did not 

qualify under the state of mind exception because it did not meet the 

contemporaneity requirement for that exception. 

We again agree that Lauren’s statements about her desire to get away 

from Miller did not qualify as a present sense impression, contrary to the trial 

court’s ruling. As discussed above, the statement was not connected to an 

event or condition that Lauren was perceiving at that time, and therefore the 

requirements of KRE 803(1) were not satisfied. However, the statement clearly 

qualified under the state of mind exception because it demonstrated that at the 

time of Lauren’s conversation with Antavia, she was contemplating how to get

away from Miller. In other words, when Lauren expressed her desire to get 

away from Miller, that desire was “[a] statement of [her] then existing state of 

mind . . . such as [her] intent”

40 to get away from Miller. It was therefore 

admissible under KRE 803(3). 

Similarly, and for the reasons already provided, Antavia’s testimony that 

Lauren was afraid of Miller qualified under the state of mind exception to 

hearsay. Miller is correct that Antavia first says that Lauren was afraid of 

Miller “at one point.” But she then goes on to explain that Lauren expressed

 

40 KRE 803(3). 
25

that fear during a conversation that she had with Audrianna and Antavia the 

day before she died. That fear was therefore expressed by Lauren while she 

was concurrently experiencing it, satisfying KRE 803(3). 

As previously discussed, Miller claimed that Lauren’s death was an 

accident. Therefore, Lauren’s fear of Miller, and the desire to get away from 

him due to that fear were both relevant.41 And we again hold that any 

prejudicial effect this evidence may have had was not substantially outweighed 

by its probative value. The trial court accordingly did not abuse its discretion 

by admitting Antavia’s testimony. 

Finally, Miller argues that admitting the following portions of Haley’s 

testimony was reversible error: 

Q: Did [Lauren] ever express any feelings to you about [Miller]? 

Any concerns?

A: Not until the end, before her death, no. 

Q: So, she died on February 28, 2016. Prior to that what kind of 

concerns did she express to you?

A: A few days before her murder she was expressing that she 

wanted to move. She didn’t want to be around him anymore. 

Q: Did she say why?

A: Basically, she was scared. She wanted to get away. 

Q: She was scared of [Miller]?

A: Yes.42

 

41 See Dillon, 475 S.W.3d at 23.

42 (Emphasis added). 
26

We note first that, unlike Miller’s arguments regarding Audrianna and 

Antavia’s respective testimonies, his arguments concerning Haley’s testimony 

are unpreserved. The Commonwealth did not discuss Haley’s anticipated 

testimony in its KRE 404(c) notice, but the defense made no objection to her 

testimony at trial, whether on KRE 404(c) grounds or on hearsay grounds. 

Nevertheless, Miller has requested review of this issue for palpable error under 

RCr 10.26. 

We will reverse under the palpable error standard only when a 

manifest injustice has resulted from the error. The required 

showing is probability of a different result or error so fundamental 

as to threaten a defendant's entitlement to due process of law. 

When we engage in palpable error review, our focus is on what 

happened and whether the defect is so manifest, fundamental and 

unambiguous that it threatens the integrity of the judicial 

process.43 

Based upon the same reasoning discussed supra, we hold that no error 

occurred in the admission of Haley’s testimony. Again, while Lauren’s desire to 

get away from Miller was not a present sense impression, it was a statement 

that qualified under the state of mind exception to hearsay. Likewise, her fear 

of Miller that she expressed to Haley also qualified under the state of mind 

exception to hearsay. And, because Miller claimed her death was an accident, 

both statements were relevant. Finally, the statements’ probative values were 

not substantially outweighed by their prejudicial effect. 

 

43 Tackett v. Commonwealth, 445 S.W.3d 20, 26 (Ky. 2014) (internal citations 

and quotation marks omitted).
27

(2) Miller stole a key from Lauren’s home.

Within the same KRE 404(c) notice discussed in Section II(C)(1) of this 

opinion, the Commonwealth stated that “[Antavia] and [Audrianna] were 

concerned for Lauren’s safety because of prior incidents where the Defendant 

entered Lauren’s home unannounced[.]” The defense objected to this 

anticipated testimony as follows: “Objection: Statement 3 (that on prior 

occasions of (sic) Mr. Miller went to the alleged victim’s house unannounced) is 

inadmissible character evidence under KRE 404[.]” As discussed, the trial 

court ruled that evidence of Lauren’s fear of Miller and the reasons for that fear 

were admissible. Therefore, it found that evidence that Miller would come into 

Lauren’s home unannounced was admissible if that was one of the reasons 

that she feared him. 

During Audrianna’s testimony she stated that Lauren was trying to get 

away from Miller because “she was scared [and] he had stolen a key off of her 

dresser.” The defense objected to this testimony. Defense counsel argued that 

it was a prior bad act that was undisclosed by the Commonwealth’s KRE 404(c) 

notice because the notice said nothing about Miller stealing a key. The 

Commonwealth countered that the evidence was not being offered to prove that 

Miller stole a key. Rather, the Commonwealth was trying to show that he 

would enter Lauren’s home unexpectedly and the key was the means by which 

he was able to do that. 

The trial court ruled that the theft of the key was a prior bad act under 

KRE 404(b). Therefore, the court chose to admonish the jury to disregard the 
28

theft of the key. The Commonwealth asked the court if it could ask its 

witnesses how Miller got into Lauren’s house and if she ever gave him a key. 

The court found that it could ask those questions because it explained the 

basis for Lauren’s fear. The trial court then admonished the jury:

The witness has testified that there was a key that was stolen or 

taken. You shall disregard that as having any evidentiary value. 

There may be some proof later on or some testimony of him coming 

in the house. You can consider that as the mechanism, but the 

fact that a key may or may not have been taken shall not be 

considered as evidence in determining his guilt or innocence in the 

trial of this matter.

Because the trial court gave a curative admonition regarding Miller’s 

prior bad act of stealing the key, the parameters of this Court’s review are wellestablished. Specifically,

[a] jury is presumed to follow an admonition to disregard evidence 

and the admonition thus cures any error. There are only two 

circumstances in which the presumptive efficacy of an admonition 

falters: (1) when there is an overwhelming probability that the jury 

will be unable to follow the court's admonition and there is a 

strong likelihood that the effect of the inadmissible evidence would 

be devastating to the defendant; or (2) when the question was 

asked without a factual basis and was inflammatory or highly 

prejudicial.44 

Before this Court, Miller does not assert that there was reversible error on the 

grounds that the Commonwealth’s KRE 404(c) notice was insufficient. Rather, 

he asserts that the trial court’s admonition was ineffective because the 

Commonwealth continued to elicit testimony suggesting that Miller stole the 

 

44 Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (internal 

citations and quotation marks omitted).
29

key. In particular he points to portions of Audrianna, Haley, and Antavia’s 

respective testimonies. 

First, Miller argues during Audrianna’s testimony, the Commonwealth 

elicited the following:

Q: Did Lauren ever tell you she gave [Miller] a key?

A: No.

Miller next points to the following excerpt from Haley’s testimony: 

CW: Without getting into how it may or may not have been 

obtained, did [Miller] have a key? According to Lauren. 

Defense: Objection, question calls for hearsay.

CW: We’ve already ruled on that about present sense impression.

Court: I’m going to sustain the objection. 

CW: To your knowledge, did Lauren ever voluntarily give him a key 

to her home?

A: No.

Finally, Miller points to the following section of Antavia’s testimony:

Q: To your knowledge, did Lauren ever give him a key?

A: No.

We note that, apart from the Commonwealth’s question to Haley about whether 

Miller had a key according to Lauren, the defense did not object to any of the 

foregoing portions of testimony. 

As mentioned, this Court may hold that a trial court’s admonition is 

ineffective if (1) there is an overwhelming probability that the jury was unable 
30

to follow the admonition and there is a strong likelihood that the effect of the 

inadmissible evidence would be devastating to the defendant; or (2) “when the 

question was asked without a factual basis and was inflammatory or highly 

prejudicial.”45 We hold that neither of those scenarios is present in this case. 

First, there was no overwhelming probability that the jury was unable to 

follow this admonition. After the admonition, the Commonwealth did not elicit 

evidence from any other witness that Miller stole a key to Lauren’s home. 

Instead, it asked questions that were well-within the trial court’s ruling, i.e., it 

only asked if Lauren gave Miller a key to her home. Audrianna, Antavia, and 

Haley all testified that one reason Lauren was afraid of Miller and wanted to get 

away from him was that he would enter her home unannounced. We see no 

reason why the jury would not have been able to consider Miller’s possession of 

the key, stolen or not, solely as a mechanism by which he would enter Lauren’s 

home without her permission. Further, there is not a strong likelihood that 

Audrianna’s testimony that Miller stole the key would have been devastating to 

his defense. With regard to Lauren’s murder, the sole issue the jury had to 

decide was whether Miller shot Lauren intentionally. There was no question 

about Miller being in Lauren’s home that morning, nor was there a question for 

the jury about how he entered her home. In Miller’s own statement to police he 

acknowledged that he was present in her home that morning and that he 

entered her home by kicking in the door, not by use of a key. Consequently, 

 

45 Johnson, 105 S.W.3d at 441.
31

testimony that he stole a key to Lauren’s home would have had no bearing on 

his defense that Lauren was shot accidentally. 

Next, the Commonwealth never asked Audrianna if Miller stole a key 

from Lauren’s home. The Commonwealth asked, “did she tell you why she was 

trying to get away?” and Audrianna responded, “[y]es, she said that she was 

scared and that he had stolen a key off of her dresser.” Accordingly, because 

there was no question, there is no basis to hold that a question was asked 

without a factual basis or that it was inflammatory or highly prejudicial. We 

therefore affirm. 

(3) Miller stalked Lauren prior to her death. 

During his testimony, the medical examiner read the following from the 

“narrative summary” section of his autopsy report: “Reportedly the decedent 

was a 22-year-old white female that was allegedly shot by another on 2/28/16. 

Per medical staff the decedent was reportedly stalked by a male and he 

allegedly kicked in the door to her residence on 2/28/16.” The defense 

objected to the testimony as a hearsay statement that contained the 

inflammatory word “stalking,” and moved for a mistrial. The trial court found 

that the allegation of stalking did not add anything to the medical examiner’s 

diagnosis or treatment and sustained the defense’s objection. It denied the 

defense’s motion for mistrial, but sua sponte admonished the jury as follows: 

“Ladies and gentlemen I’d admonish you to ignore the last statement made. 

You’ll give it no weight as evidence when you deliberate on the evidence 
32

presented.” In addition, that portion of the autopsy report was redacted prior 

to being submitted as evidence. 

Again, juries are presumed to follow an admonition to disregard 

evidence.46 And the only way to overcome that presumption is to either show: 

(1) that “there is an overwhelming probability that the jury will be unable to 

follow the court's admonition and there is a strong likelihood that the effect of 

the inadmissible evidence would be devastating to the defendant” or (2) that 

“the question was asked without a factual basis and was inflammatory or 

highly prejudicial.”47

In his brief to this Court, Miller presented no arguments as to why the 

trial court’s admonition would have been ineffective, and there is nothing in the 

record that would lead us to hold otherwise. The jury was properly 

admonished, the autopsy report was redacted, and the allegation of stalking 

was never mentioned again. Consequently, we hold no error occurred.

III. CONCLUSION

Based on the foregoing, we affirm. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

 

46 Johnson, 105 S.W.3d at 441.

47 Id. 
33

Julia Karol Pearson 

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Jay Cameron 

Attorney General of Kentucky 

Mark Daniel Barry 

Assistant Attorney General