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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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, RAP 40(D), THIS 

OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

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 

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CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN 

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COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG 

WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO 

THE ACTION. 
RENDERED: JUNE 13, 2024

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2023-SC-0287-MR

JERMAINE WILLIAMS APPELLANT 

V. 

ON APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE JULIE KAELIN, JUDGE

NO. 18-CR-001915

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A jury convicted Jermaine Williams in Jefferson Circuit Court of 

manslaughter in the second degree and being a convicted felon in possession of 

a handgun. He was sentenced to twenty years’ imprisonment and now appeals 

as a matter of right1 raising two allegations of error in seeking reversal. 

Following a careful review, we affirm.

On June 6, 2018, Louisville Metro Police Department (LMPD) Officers 

Kierstan Holman and Justin Nava each drove by 1770 West Oak Street in 

Louisville several times. Multiple people were seen standing outside around 

10:30 p.m. Approximately two hours later, Officer Holman observed only three

people, two of whom seemed to be in a heated argument on the sidewalk in 

1 KY. CONST. §110(2)(b).
2

front of the home. Officer Holman drove around the block to ensure the fight 

did not become physical. As she passed the home again, the altercation 

seemed to have cooled, so she and Officer Nava continued their normal patrols.

A short time later, a call came across the police radio about a shooting 

which had occurred at 1770 West Oak Street. Upon arrival at the scene, 

Officer Holman saw Darryl Lewis lying on the ground. She recognized Lewis as 

one of the men who had been fighting at the location earlier in the evening. He 

had been shot multiple times and died as a result of his injuries. Officer 

Holman noted Lewis was wearing shorts and a dark t-shirt and a cellphone had 

fallen out of his waistband. Other officers arrived and began processing the 

scene. Lewis’ blood was found on a BMW parked in front of the home. Officers

knocked on the door of 1770 West Oak Street but received no response.

Around 2:00 a.m., after police had been at the crime scene for 

approximately an hour, Williams calmly walked out of the house carrying a

duffle bag and told police he was leaving to catch a cab. When asked if he 

knew anything about the shooting, Williams said he had heard three or four 

gunshots and saw three black males running down West Oak Street. He 

allowed responding officers to enter the home after he informed them there 

were two other individuals inside. Upon exiting the residence, the officers 

learned Williams’ name and discovered he had an outstanding warrant for his 

arrest. He was taken into custody and a search incident to arrest was 

conducted. Officer Holman found a blue latex glove in Williams’ pocket which 

contained multiple spent shell casings and projectiles. Officer Nava searched 
3

the duffle bag and located a .38 special revolver, more latex gloves, and some 

toiletries. Subsequent ballistics testing of the spent shell casings and 

projectiles located on Williams’ person and at the scene revealed four recovered 

casings and two projectiles had been fired from Williams’ revolver.

Williams invoked his right to counsel and refused to speak to police 

about the shooting. His hands were swabbed, and testing revealed the 

presence of gunshot residue. Williams was subsequently charged with murder, 

being a felon in possession of a handgun, and violating a protective order.2

During trial, Williams testified and did not deny shooting Lewis. The 

thrust of his defense was that he shot Lewis in self-defense. He indicated he 

had gone to sleep around 9:00 p.m. on the night of the incident. At some 

point, he was awakened by “a whole bunch of chaos” outside. He looked out 

the window and observed Lewis fighting with two men. Williams claimed to 

know none of the three men. A man he did know, Snoop, was watching the 

fight and trying to calm Lewis down. Williams said the fighting went on for 

some time, with Lewis getting knocked down by one of the men then getting up 

to fight the other. The altercation ended with Lewis walking down an alleyway 

while proclaiming he was leaving to get his gun. The other two men walked 

away, leaving only Snoop outside the residence.

Williams went out to speak with Snoop when Lewis reappeared, holding a 

piece of broken concrete. Lewis and Snoop began arguing and Snoop told 

2 At trial, the Commonwealth moved to dismiss the latter charge.
4

Lewis he needed to calm down and go home. Williams, who said he had been 

sitting on the hood of a car parked on the curb, indicated he tried to go back 

inside but Lewis confronted him. Lewis was larger and stronger than Williams

which Williams said made him afraid, especially since Lewis had previously 

been fighting two men and kept coming back for more, even after being 

knocked down. Williams said he saw a bulge at Lewis’ waist as he approached 

which Williams believed to be a firearm. He admitted Lewis had not reached 

for anything and Williams had not seen him with a weapon that night. 

Because of his fear and the events of the night, Williams drew his own firearm 

and shot Lewis four times, once in the head, once in the hip, and twice in the 

chest. Two of the shots proved fatal.

The jury acquitted Williams of murder but found him guilty of the lesserincluded offense of manslaughter in the second degree and being a convicted 

felon in possession of a handgun. Consecutive ten-year sentences for each 

count were recommended by the jury and subsequently imposed by the trial 

court. This appeal followed.

Williams alleges the trial court committed two reversible errors. First, he 

asserts the trial court improperly prohibited trial counsel from asking Williams 

on re-direct examination about his previous claims of self-defense. Second, he 

contends on several occasions the trial court failed to admonish the jury as 

required by RCr3 9.70.

3 Kentucky Rules of Criminal Procedure.
5

For his first allegation of error, Williams claims the trial court erred in 

precluding trial counsel from questioning him about a previous court 

appearance where Williams claimed he shot Lewis in self-defense. During his 

direct examination, Williams stated he had been wanting to tell his story for a 

while. At a bench conference, the Commonwealth argued Williams had opened 

the door to questioning about his refusal to speak with police on the night of 

the shooting. Defense counsel conceded the door had been opened and the 

trial court permitted the line of questioning.

On cross-examination, the Commonwealth extensively questioned 

Williams regarding the failure to speak with police since—as he professed on 

direct examination—he so badly wanted to tell his side of the story. Williams 

was evasive, abrasive, and argumentative, often responding to the 

Commonwealth’s questions with questions of his own. The Commonwealth 

was ultimately able to elicit responses indicating Williams had initially told 

police he saw three black males running away from the scene. Additional 

questioning emphasized Williams had not indicated he shot Lewis in selfdefense, even after police located a revolver in his duffle bag hours after the 

shooting. Williams admitted he told police nothing at the scene about how 

Lewis came to be found dead in front of Williams’ home. He also testified that 

later that evening he told police he would not speak without an attorney 

present. The plain implication of the Commonwealth’s questioning was,

contrary to his assertions under direct examination, Williams had done 

everything but try to tell his self-defense story.
6

On re-direct examination, defense counsel attempted to ask Williams if 

he recalled making a statement previously, but the Commonwealth objected, 

and a bench conference ensued. Defense counsel, in an effort to respond to 

what he believed was the Commonwealth’s inference to the jury regarding a 

recent fabrication, indicated he wanted to ask about a previous court 

appearance during which Williams had blurted out that he had killed Lewis in 

self-defense. The Commonwealth contended defense counsel was merely 

attempting to bolster Williams’ own testimony. In response, defense counsel 

argued Williams had said he wanted to tell his story “for some time” but never 

said he had told the truth from the beginning. Because the court appearance 

at which the alleged proclamation of self-defense occurred in 2020, he intended 

to ask Williams about it because that was “some time ago.” Counsel further 

alleged the Commonwealth had opened the door to the line of questioning by 

implying to the jury that Williams had raised self-defense for the first time that 

day. Neither party cited a rule of evidence or caselaw in support of their 

relative positions. In sustaining the Commonwealth’s objection, the trial court 

referred to Williams’ proposed testimony as bolstering and believed admitting it 

would “open up such a can of worms.”

Rulings on the admissibility of evidence are reviewed for an abuse of 

discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 

2000). An abuse of discretion occurs when “the trial judge’s decision was 

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Williams argues 
7

the trial court abused its discretion in excluding the evidence, alleging his prior 

claim of self-defense was admissible as substantive evidence rebutting the 

Commonwealth’s implication of a recent fabrication and to rehabilitate his 

credibility after the Commonwealth attacked it. We disagree.

“The law is well established that ‘[a] witness is not permitted to bolster 

her own testimony unless and until her credibility has been attacked.’” Garrett 

v. Commonwealth, 534 S.W.3d 217, 225 (Ky. 2017) (quoting Tackett v. 

Commonwealth, 445 S.W.3d 20, 32 (Ky. 2014)). Once the credibility of a 

witness has been attacked, a prior consistent statement may be introduced 

when offered “to rebut an express or implied charge against the declarant of a 

recent fabrication or improper influence or motive[.]” KRE4 801A(a)(2). Such 

prior consistent statements must have been “made before the alleged motive to 

fabricate came into existence.” Slaven v. Commonwealth, 962 S.W.2d 845, 858 

(Ky. 1997). However, these statements are inadmissible when they are merely

“offered to prove that the declarant’s trial testimony is truthful because it is 

consistent with her prior statements.” Winstead v. Commonwealth, 283 S.W.3d 

678, 688 (Ky. 2009) (quoting Dickerson v. Commonwealth, 174 S.W.3d 451, 472

(Ky. 2005)). The longstanding rule in Kentucky is that generally

a witness cannot be corroborated by proof that on previous 

occasions he has made the same statements as those made in his 

testimony. Where, however, a witness has been assailed on the 

ground that his story is a recent fabrication, or that he has some 

motive for testifying falsely, proof that he gave a similar account of 

the matter when the motive did not exist, before the effect of such 

an account could be foreseen, or when motive or interest would 

4 Kentucky Rules of Evidence.
8

have induced a different statement, is admissible.

Eubank v. Commonwealth, 210 Ky. 150, 275 S.W. 630, 633 (1925) (emphasis 

added).

Both at trial and on this appeal, Williams has failed to demonstrate that 

he did not have a motive to fabricate at the time he made his claims of selfdefense in 2020, which was nearly two years after Lewis was killed. The claim 

came well after he was arrested and was made aware of the Commonwealth’s 

evidence against him. It was inconsistent with his statements to police on the 

night of the shooting that he saw three men running from the scene and his 

attempts to distance himself completely from any involvement. Williams

consistently attempted to conceal, deflect, and downplay his responsibility for 

Lewis’ death by offering differing version of events. The incentive to lie about 

what happened arose at the time he pulled the trigger of his revolver four 

times. His motivation to fabricate simply did not change from the night of the 

shooting through his trial. Indeed, he admitted during his trial testimony he 

believed his best plan was to obfuscate and lie from the very beginning. 

Therefore, because Williams’ motive to fabricate clearly existed prior to his 

2020 claim of self-defense, those prior statements were inadmissible as 

substantive evidence under KRE 404A(a)(2) to bolster his trial testimony.

In addition, Williams was not entitled to introduce his previous claim of 

self-defense for rehabilitative purposes. A witness’s “post-motive” prior 

consistent statements may be offered for purposes other than proof of the truth 

of their contents such as when they are “offered primarily for rehabilitative, not 
9

substantive purposes.” Noel v. Commonwealth, 76 S.W.3d 923, 929 (Ky. 2002). 

“In such a case, the statement is not admitted under KRE 801A(a)(2) as a prior 

consistent statement. Indeed, KRE 801A(a)(2) does not even address this 

scenario[.]” James v. Commonwealth, 360 S.W.3d 189, 206 (Ky. 2012).

Instead, the prior statement is admitted as non-hearsay “because it is offered 

not for the truth of the matter but to ‘rehabilitate . . . credibility.’” Id. (quoting 

Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 730 (6th Cir. 1994)). 

However, it must be shown that “the statement [has] ‘some rebutting force 

beyond the mere fact that the witness has repeated on a prior occasion a 

statement consistent with his trial testimony.’” Noel, 76 S.W.3d at 929 

(quoting United States v. Ellis, 121 F.3d 908, 920 (4th Cir. 1997)). Williams’ 

entire defense was that he shot Lewis in self-defense. Based on the facts of 

this case, the attempt to introduce his 2020 consistent claim of self-defense 

could have no purpose other than to try to show the jury he was telling them 

the truth from the stand. Because no other “rebutting force” exists, 

introduction of the prior statement for rehabilitative purposes was 

unwarranted. We discern no error in the trial court’s decision to exclude the 

testimony.

Second, Williams argues the trial court committed reversible error when 

it failed to admonish the jury during several recesses of the trial. He points to 

six instances over the course of the four-day trial where the trial court did not 

give or refer to the admonition. Defense counsel did not object to any of these 

failures. Thus, the issue is not preserved for appellate review. Salinas v. 
10

Commonwealth, 84 S.W.3d 913, 917 (Ky. 2002). While Williams admits this 

claim of error is unpreserved, he seeks review under the palpable error 

standard set forth in RCr 10.26, which provides:

A palpable error which affects the substantial rights of a party may 

be considered by the court on motion for a new trial or by an 

appellate court on appeal, even though insufficiently raised or 

preserved for review, and appropriate relief may be granted upon a 

determination that manifest injustice has resulted from the error.

A palpable error is “easily perceptible, plain, obvious and readily 

noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To 

demonstrate manifest injustice, a party must show the “probability of a 

different result or error so fundamental as to threaten a defendant's 

entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 

(Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)). In other 

words, a palpable error occurs where “the defect in the proceeding was 

shocking or jurisprudentially intolerable.” Id. at 4.

RCr 9.70 provides as follows:

The jurors, whether permitted to separate or kept in charge of 

officers, must be admonished by the court that it is their duty not 

to permit anyone to speak to, or communicate with, them on any 

subject connected with the trial, and that all attempts to do so 

should be immediately reported by them to the court, and that 

they should not converse among themselves on any subject 

connected with the trial, nor form, nor express any opinion 

thereon, until the cause be finally submitted to them. This 

admonition must be given or referred to by the court at each 

adjournment.

The Commonwealth concedes the trial court did not admonish the jury 

on the occasions noted by Williams. It observes, however, that the court did 
11

properly admonish the jury on all other occasions when the jury was excused 

from the courtroom.

We agree the trial court erred in failing to admonish the jury prior to 

each recess. However, while RCr 9.70 requires an admonition at each 

adjournment, “in the absence of some showing of misconduct, substantial 

compliance with [the rule] will suffice.” Commonwealth v. Messex, 736 S.W.2d

341, 342 (Ky. 1987). Williams has not suggested or shown that he was 

actually prejudiced by these failures. Furthermore, he does not identify any 

instance where any member of the jury behaved contrary to the mandate of the 

admonitions which were given. Messex, 736 S.W.2d at 342 (Ky. 1987); 

Schweinefuss v. Commonwealth, 395 S.W.2d 370 (Ky. 1965). Moreover, a 

review of the record reveals the trial court gave numerous, detailed 

admonitions throughout the course of this lengthy trial. Thus, we assume any 

supposed error was harmless and reversal is not warranted. RCr 9.24. This is

particularly true where, as here, as we are reviewing the issue under a palpable 

error standard. See, e.g., Salinas, 84 S.W.3d at 917; Messex, 736 S.W.2d at

342; Daniels v. Commonwealth, 404 S.W.2d 446, 447 (Ky. 1966).

For the foregoing reasons, the judgment of the Jefferson Circuit Court is 

affirmed.

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

JJ., concur. Thompson, J., concurs in result only. 
12

COUNSEL FOR APPELLANT:

Joshua M. Reho

Louisville Metro Public Defender’s Office

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General

Jenny L. Sanders

Assistant Attorney General