RENDERED: MARCH 24, 2022

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0022-MR

DONALD M. LYNCH APPELLANT

ON APPEAL FROM OHIO CIRCUIT COURT 

V. HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE 

NO. 18-CR-00219

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING

Donald Lynch (Lynch) was found guilty of first-degree rape, murder, 

abuse of a corpse, first-degree trafficking in a controlled substance, and 

tampering with physical evidence. He was sentenced to life in prison without 

parole after the jury found he committed murder during the commission of 

rape. He now appeals the resulting sentence as a matter of right.1 After 

review, we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Amanda Riley (Amanda) took her daughter to the doctor on the morning 

of December 16, 2016. Amanda’s mother, Sharon Ellis (Ellis), gave Amanda 

the child’s insurance card before she left. Amanda stopped by the house of her 

 

1 Ky. Const. § 110(2)(b).
2

estranged husband, Heath Riley (Heath), to get the child’s health-care debit 

card. They argued, he refused to give it to her, and she left. Amanda then took 

her daughter to the doctor, returned home, left again to run some errands, and 

then returned home again. Amanda left home once more that evening. Ellis

did not see who had picked her up. 

Amanda’s body was found floating in the waters of the Peabody Wildlife 

Management Area early the next morning by a trapper. Her daughter’s 

insurance card was discovered in her pocket after police retrieved her body 

from the water. The insurance card led police to Heath, who identified her 

body. Amanda’s cell phone and a pack of cigarettes were located at the top of a 

boating ramp near where her body was discovered. 

Police notified Ellis that Amanda had died. While the police were still at 

Ellis’s home, Amanda’s boyfriend, Joshua Estep (Estep), called Ellis because he 

was concerned that he had not heard from Amanda. Ellis informed him that 

Amanda had died. Estep was in Florida at the time. He belonged to a local 

chapter of a motorcycle club. 

Police immediately started investigating the details of Amanda’s life. 

Lynch’s name came up several times during the course of their investigation. 

One of Amanda’s friends provided police with Lynch’s phone number. Lynch’s 

phone number was in Amanda’s phone under the name “Matt Dodge.” 

Amanda’s cellphone contained text messages between the two. She had 

texted Lynch early on the evening of the 16th and asked him if he had 
3

methamphetamine, and offered him gas money if he would come pick her up. 

Lynch texted Amanda when he arrived at her house. Lynch had deleted the 

texts between him and Amanda and had attempted to delete all other data from 

his cell phone, including a text message from James Johnson, which said 

“hope you ain’t been out at your usel [sic] nighttime hangout in the last couple 

days.”

Lynch gave a statement to police several days after Amanda’s death. He 

claimed that he and Amanda had been together on the night she died, but that 

he had smoked methamphetamine with her and then left her in the middle of 

the road, though he was not certain where. 

An autopsy was performed on Amanda’s body. She died from blunt force 

trauma to the head. She had lacerations to her scalp, bruising and contusions 

on her arms, and broken bones in her right arm and hand. Post-mortem 

testing revealed that Amanda had methamphetamine in her blood. The 

examiner also completed a rape kit, which revealed that Lynch’s DNA was 

present. Subsequent testing performed on Lynch’s clothing would show that 

Amanda’s blood was present on Lynch’s right shoe. 

Cell location data analysis was completed on Lynch and Amanda’s 

cellphones. The data reflected that Lynch and Amanda’s cellphones were in 

close proximity for much of the night. Between 7:30 p.m. and 9:00 p.m. 

Lynch’s phone left the wildlife management area. Amanda’s did not leave the 

area, and her phone did not move at all for the remainder of the night. 
4

In January 2017, about a month after the murder, Joseph Cox (Cox) was 

walking along Rochester Road—which runs near the Peabody Wildlife 

Management Area—when he found a purse under a bridge. Cox testified that 

when he found it, the purse was soaking wet and he put it on a sheet to dry 

and waited until the next day to go through it. Cox found Amanda’s 

identification in the purse, and, after recognizing her name from the news,

notified the police. He did so not by calling the police, but instead by riding 

around in search of a patrol car. He stopped for food and saw a Kentucky 

State Trooper nearby. He gave the purse to police at that time. 

The Commonwealth theorized that Lynch had raped Amanda, she got out 

of his truck, and then he murdered her. The Commonwealth pointed to the 

bruising and defensive wounds on Amanda’s body, the semen present in her 

vagina, anus, and underwear, and the sheer amount of trauma to her head and 

body when arguing that the murder occurred in the course of rape. 

At trial, Lynch chose not to testify. Defense counsel asked the trial court 

to allow Lynch’s waiver of his right to testify to be on the record. The record 

reflects that the following exchange occurred after the trial court dismissed the 

jury for a brief recess and asked everyone present to step out of the courtroom: 

Court: [Defense counsel], you wanted to put 

something on the record? 

Defense Counsel: Yes, sir. Mr. Lynch is choosing to 

exercise his right not to testify. And, uh. . .

Court: You want to ask him some questions [on the 

record] and make sure he . . .? 

Defense Counsel: Yes, sir. 
5

Court: Okay. Go right ahead. 

[. . .]

Defense Counsel: Are you Donald Matthew Lynch? 

Lynch: Yes, sir. 

Defense Counsel: And do you understand that you 

have a right to testify here today, and that’s only 

something you decide? 

Lynch: Yes, sir. 

Defense Counsel: Has it also been explained to you 

that you have a right not to testify? 

Lynch: Yes, sir. 

[. . .]

Defense Counsel: Now, Mr. Lynch, based on this 

knowledge you have—that you have a right to testify or 

right not to testify—that is completely your choice. 

What are you choosing to do? 

Lynch: I am choosing not to take the stand and testify 

due to the fear of retaliation on certain things or, say,

things come out.

Defense Counsel: Okay, so you’re choosing not to

testify?

Lynch: Yes, sir.

Defense Counsel: Judge, I think that’s all I have of 

this witness.

Court: What was the reason?

Lynch: Fear of retaliation due to certain affiliations of 

witnesses and relations to motorcycle clubs. Physical 

health reasons that might arise later if I do [testify].
6

Court: I don’t quite follow the logic of that. So, you’re 

being tried for murder here, and you’re saying that for 

fear of retaliation you don’t want to testify in your

defense?

Lynch: Fear and retaliation by certain people who 

have been called to the stand. Their affiliation with 

certain clubs and relations to a lot other people

around based on knowledge I have of that person and 

the club, he’s affiliated with, I choose not to testify. It 

puts my life and the family of mine that is still alive in

danger, because he has been to a state where my 

family is living, the surviving members of my family. 

Based on the facts and the evidence I know of his

affiliation, it is detrimental to me and my family if I do 

get up there and disclose certain stuff and also that I 

don’t feel that at this time that it it’s going really 

change anything that’s been presented.

Court: Alright. Okay, alright, thank you very much.

The jury then convicted Lynch on all counts. This appeal followed. Additional 

facts are discussed below as necessary. 

II. ANALYSIS

Lynch alleges three errors on appeal. First, that the trial court erred by 

failing to inquire about Lynch’s waiver of his constitutional right to testify. 

Second, that the trial court erred by failing to direct a verdict of acquittal on 

rape in the first degree. Third, that the trial court erred by failing to direct a 

verdict of acquittal on tampering with physical evidence. 

A. The trial court did not commit reversible error during Lynch’s 

waiver of his right to testify. 

Lynch asks this Court to broaden the scope of a trial court’s duty to

protect a defendant’s right to testify. He argues that, because he stated on the 
7

record that he was waiving his right to testify due to fear of retaliation from the 

witness and his motorcycle club, the trial court should have inquired further 

regarding the voluntariness of his waiver. He does not articulate what 

actionable result further inquiry would have ultimately taken the form of. 

Instead, he states that the lack of further inquiry so severely impeded his 

constitutional rights that he is now entitled to a new trial. And, he asks this 

Court to adopt a new rule that requires trial courts to engage in an in-depth 

questioning of the defendant regarding the waiver of the right to testify to 

assess voluntariness if the trial court is aware of any impediment to the 

defendant’s ability to exercise that right. Such a rule is impractical and prone 

to inconsistent application. For the reasons discussed below, we decline his 

invitation to adopt that rule.

1. Standard of Review 

This issue is unpreserved.2 Though defense counsel moved for Lynch’s 

waiver to be on the record, defense counsel did not object to the limited 

colloquy that did occur, nor did counsel question Lynch further concerning the 

voluntariness of the waiver. And, neither did defense counsel object when the 

trial court accepted Lynch’s waiver. Because this issue is unpreserved, Lynch 

has requested review pursuant to RCr 10.26.3 This Court’s review of an 

 

2 Kentucky Rule of Criminal Procedure (RCr) 9.22. 

3 This Court employed the palpable error standard of review to the question of 

whether a trial court must engage in colloquy to determine if a defendant’s waiver of 

the right to testify is voluntary and knowing in Florence v. Commonwealth, 120 S.W.3d 

699 (Ky. 2003). 
8

unpreserved error that affects substantial rights is limited to whether palpable 

error was committed by the trial court.4 A palpable error, which must be

 

However, we note that which standard of review to apply in cases concerning 

the right to testify is hotly contested. See Arthur v. United States, 986 A.2d 398, 415 

(D.C. 2009) (stating that, because the right to testify has been declared a 

“‘fundamental right,’ . . . harmlessness analysis is ‘entirely misplaced. To apply such 

an outcome-determinative analysis at worst denigrates the position of the individual 

with respect to his own defense and trial and at best exhibits an unthinking 

paternalism toward criminal defendants.’”); Frey v. Schuetzle, 151 F.3d 893, 898 n.3 

(8th Cir. 1998) (“[W]e note that it is unclear if harmless error analysis applies to the 

denial of a defendant's right to testify.”); See also United States v. Butts, 630 F. Supp. 

1145, 1148 (D. Me. 1986); But cf. Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997) 

(applying harmless error review and noting that where defendant would have testified 

only “to demonstrate that the prosecution failed to disprove his defense of justification 

beyond a reasonable doubt,” argument for prejudice is weaker); Martinez v. Ylst, 951 

F.2d 1153, 1157 (9th Cir. 1991) (holding that it was not harmless error for the court to 

refuse to exclude evidence of prior convictions, which resulted in defendant's decision 

not to take the stand); United States v. Leo, 941 F.2d 181, 195 (3d Cir. 1991) (stating 

that although “[w]e believe that the district court abused its discretion when it ruled 

that [defendant] could not testify in his own defense . . ., that error does not provide 

the basis for a new trial if the error was harmless beyond a reasonable doubt.”); Ortega 

v. O'Leary, 843 F.2d 258, 262-63 (7th Cir. 1988) (holding that trial court's refusal to 

reopen evidence to include defendant's testimony was constitutional error, and that 

“the context of the case will indicate whether the error was harmless beyond a 

reasonable doubt”) (citation omitted); United States v. Phillips, 664 F.2d 971, 1042 (5th 

Cir. 1981) (“[E]ven if we assume that [defendant] did not waive his right to testify when 

he stated to the trial court that he no longer planned to take the stand, we conclude 

that the deprivation of [defendant's] right to testify in his own behalf was error that 

was harmless beyond a reasonable doubt . . . because the evidence of [defendant's] 

guilt was overwhelming.”) overruled on other grounds by United States v. Huntress, 956 

F.2d 1309, 1317 (5th Cir. 1992). 

Either way, the United States Supreme Court has yet to address whether denial 

of the right to testify is a structural error, which would result in automatic reversal, or 

a “trial-type” error that is subject to harmless error review. This Court, absent that 

guidance, has employed the harmless error review to this issue, where we were 

cognizant of this ongoing debate. Quarels v. Commonwealth, 142 S.W.3d 73 (Ky.

2004). But, because the error is unpreserved, we need not and will not wade back 

into the contentious debate of which standard to employ. 

4 RCr 10.26.
9

obvious and serious,5 exists where there is “a probability of a different result or 

error so fundamental as to threaten due process.”6 

2. Defense counsel—not the trial court—has a duty to act when he 

or she is aware of an impediment to their client’s free exercise of 

the right to testify. 

The United States Supreme Court has held that a defendant’s right to 

testify on his or her own behalf at trial springs from the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution.7 And, Kentucky 

law protects the defendant’s right to testify.8 Of course, the corollary right of 

the right to testify is the right not to testify—i.e. to remain silent.

9 Only the 

defendant may exercise the right to testify or refuse to exercise that right, free 

from improper influence by the court and without undue encumbrance by 

counsel.10 In short, the right to testify is a right to choose between the 

competing rights of testifying and remaining silent, both of which are rooted in 

the state and federal constitutions and, in the Commonwealth, buttressed by 

statute. The choice of one right inherently means the surrender of the other. 

The defendant’s waiver of the affirmative right to testify, whether 

through silence or statement on the record, must be “knowing and 

 

5 Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997).

6 Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).

7 See Rock v. Arkansas, 483 U.S. 44, 51-52 (1987).

8 Ky. Const. § 11; Kentucky Revised Statute (KRS) 421.225; See Quarels, 142 

S.W.3d at 78 (Ky. 2004); Woolfolk v. Commonwealth, 339 S.W.3d 411, 419 (Ky. 2011).

9 Rock, 483 U.S. at 52-53.

10 Quarels, 142 S.W.3d at 78–79.
10

voluntary.”11 If a defendant says nothing to the trial court concerning his or 

her wish to testify against advice of counsel, then the court is to infer that the 

defendant has waived this right as part of trial strategy, and the court is under 

no obligation to inquire about a waiver.12 This “no-inquiry”13 rule is, generally, 

employed regularly across the Commonwealth as standard practice.

14 

However, if the court knows a defendant wishes to testify and his or her 

counsel is attempting to prevent that defendant from testifying, then it is 

incumbent upon the court to ensure the defendant’s right to testify is protected 

through direct colloquy, on the record, and out of the presence of the jury.15 

The trial court must be careful not to intrude on the attorney-client 

relationship16 and must also avoid language so stern as to persuade a 

defendant into exercising or waiving the right.17

This Court has held that a direct colloquy with the defendant is best 

practice when a trial court is aware of a dispute between the defendant and 

 

11 Watkins v. Commonwealth, 105 S.W.3d 449, 453 (Ky. 2003) (citing United 

States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)).

12 United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000); United States v. 

Stover, 474 F.3d 904, 908 (6th Cir. 2007).

13 Some courts call this the “demand” rule, because a defendant must demand 

their right to testify, or it is waived. See, e.g., Boyd v. United States, 586 A.2d 670, 

676 (D.C. Cir. 1991).

14 Riley v. Commonwealth, 91 S.W.3d 560, 562 (Ky. 2002) (quoting United States 

v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995), “Where the trial court has no reason to 

believe that the defendant's own attorney is frustrating his or her desire to testify, a 

trial court has no affirmative duty to advise the defendant of the right to testify or to 

obtain an on-the-record waiver of such right.”)).

15 Crawley v. Commonwealth, 107 S.W.3d 197, 199 (Ky. 2003).

16 Riley, 91 S.W.3d at 562-63.

17 Woolfolk, 339 S.W.3d at 421.
11

defense counsel concerning the right to testify,18 but we have yet to establish

exactly what a trial court is to do in a situation as the one presented here, 

where it is not defense counsel, but a witness, who has allegedly inhibited the 

defendant’s right to testify. The United States Supreme Court has, to date, 

been wholly silent on whether or when it is appropriate for a trial court to 

engage in direct colloquy with a defendant, or what measures a trial court 

should take to ensure that defendant’s right to testify is satisfied. Lower 

federal courts disagree as to precisely what procedure trial courts are to 

follow.

19 And, state courts take even more disparate approaches as to when a

 

18 See Crawley, 107 S.W.3d at 199. 

19 A majority of federal circuits follow some version of the “no-inquiry” or 

“demand” rule. See United States v. Ortiz, 82 F.3d 1066, 1069 n.8 (D.C. Cir. 1996) 

(holding that the trial court has no duty to sua sponte conduct an on-the-record 

colloquy regarding defendant's waiver of the right to testify, but the situation may 

arise where it should do so); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987) (“[A] 

criminal defendant ‘must claim’ his privilege or right to testify ‘by attempting to take 

the stand or it is waived.’”); Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) (“We agree 

with those courts that place no general obligation on the trial court to inform a 

defendant of the right to testify and ascertain whether the defendant wishes to waive 

that right.”); United States v. Leggett, 162 F.3d 237, 246 (3d Cir. 1998) (finding no 

error in trial court's failure to ascertain whether defendant had waived right to testify, 

collecting cases); Webber, 208 F.3d at 550–51 (“Waiver is presumed from the 

defendant's failure to testify or notify the trial court of the desire to do so.”); Arredondo 

v. Huibregtse, 542 F.3d 1155, 1165–66 (7th Cir. 2008) (stating that a colloquy 

regarding defendant's waiver of the right to testify is not required, but is within the 

court’s discretion); United States v. Ehrmann, 421 F.3d 774, 783 (8th Cir. 2005) (“A 

district court is not required to obtain from a defendant an express, on-the-record 

waiver of his right to testify.”); United States v. Edwards, 897 F.2d 445, 447 (9th Cir.

1990) (stating that a defendant's “silence at trial effectively waived his right to testify 

on his own behalf”); United States v. Teague, 953 F.2d 1525, 1533 n.8 (11th Cir. 1992) 

(en banc) (holding “[d]efense counsel bears the primary responsibility for advising the 

defendant of his right to testify,” and “it would be inappropriate to require the trial 

court to discuss this choice with the defendant”).
12

trial court must step in to protect a defendant’s right to testify, and even then 

what the trial court is obligated to do to defend that right.20

 

20 Some state courts require the trial judge put the waiver colloquy on the 

record, regardless of whether there is a conflict between the defendant and defense 

counsel. See LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991) (stating “judges 

should make an on-the-record inquiry after the close of the defendant's case, although 

out of the jury’s hearing, into whether a non-testifying defendant understands and 

voluntarily waives his right”); People v. Curtis, 681 P.2d 504, 514 (Colo. 1984) (holding 

“[a] trial court exercising appropriate judicial concern for the constitutional right to 

testify should” conduct a colloquy with the defendant); Tachibana v. State, 900 P.2d 

1293, 1299–1305 (Haw. 1995) (stating that a colloquy must be conducted at the trial 

court level because burden imposed by post-trial challenges absent on-the-record 

waiver was significantly higher); Culberson v. State, 412 So.2d 1184, 1186 (Miss.

1982) (stating that “in any case where a defendant does not testify, before the case is 

submitted to the jury, the defendant should be called before the court out of the 

presence of the jury, and advised of his right to testify”); State v. Neuman, 371 S.E.2d 

77, 82 (W. Va. 1988) (adopting the reasoning and procedures outlined by the Colorado 

Supreme Court in Curtis, supra); State v. Anthony, 860 N.W.2d 10, 20 (Wis. 2015) 

(holding “we require that a circuit court ‘conduct a colloquy with the defendant in 

order to ensure that the defendant is knowingly and voluntarily waiving his or her 

right to testify.’”). 

Other state courts only require a trial court to engage in direct colloquy with the 

defendant regarding the waiver when the court is aware that the waiver is somehow 

constitutionally deficient. See Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999), reh’g 

granted (Mar. 30, 2000) (stating “[u]nder normal circumstances, therefore, the trial 

judge should play no role in this procedure, unless the judge believes there is evidence 

that the defendant is not making a valid waiver of the right to testify”); Torres-Arboledo 

v. State, 524 So.2d 403, 409–11 (Fla. 1988) (collecting authority and concluding that 

the right to testify “does not fall within the category of fundamental rights which must 

be waived on the record by the defendant himself”); Sanford v. State, 695 S.E.2d 579, 

584 (Ga. 2010) (stating “there is no requirement that the trial court have an on-therecord colloquy with a non-testifying defendant in order to inform the defendant of the 

right to testify and to obtain a knowing and intelligent waiver of that right”); Aragon v. 

State, 760 P.2d 1174, 1178–79 (Idaho 1988) (“[T]he defendant's right to testify at trial 

does not require an on-the-record waiver.”); State v. Breeden, 304 P.3d 660, 673 (Kan. 

2013) (“‘A trial court has no duty sua sponte to address a silent defendant and inquire 

whether he or she knowingly and intelligently waives the right to testify.’”); 

Commonwealth v. Smith, 924 N.E.2d 270, 276–77 (Mass. 2010) (stating “[i]t is within 

the judge's discretion whether to conduct such a colloquy”); State v. Thomas, 910 P.2d 

475, 478 (Wash. 1996) (en banc) (“[A] trial judge is not required to advise a defendant 

of the right to testify in order for a waiver of the right to be valid.”). 
13

The higher duty to protect a defendant’s rights, including the inverse 

rights to testify or not testify, rests with defense counsel. As the United States 

Supreme Court stated: 

The Sixth Amendment recognizes the right to the 

assistance of counsel because it envisions counsel’s 

playing a role that is critical to the ability of the 

adversarial system to produce just results. An accused 

is entitled to be assisted by an attorney, whether 

retained or appointed, who plays the role necessary to 

ensure that the trial is fair.21

The role that defense counsel has in ensuring the fairness of trial, in our view, 

includes taking appropriate action when defense counsel believes the 

defendant’s rights are not respected. In Pennycooke, the Third Circuit Court of 

Appeals made clear that the duty of providing such advice and of ensuring that 

any waiver is knowing and intelligent rests with defense counsel, not with the 

trial court.

22 

Further, the appropriate remedy for a defendant being intimidated from 

testifying is seeking criminal prosecution for the intimidator. Any defendant 

threatened specifically should seek the full protection of the law, alert the court 

hearing the criminal proceedings against him or her, and seek to exclude the 

testimony of the intimidator, or ask the court to take other protective 

measures. 

With the foregoing in mind, it was, at worst, unwise for the trial court to 

engage in a direct colloquy with Lynch concerning his right to testify and it

 

21 Strickland v. Washington, 466 U.S. 668, 685 (1984).

22 Pennycooke, 65 F.3d at 13.
14

should have followed the “no-inquiry” rule. But, as is apparent from the 

exchange, it was defense counsel—not the trial court—that elicited Lynch’s 

statement that he was fearful for his life due to a witness’s affiliation with a 

biker club. Importantly, Lynch did not specifically state that any covert or 

overt threat had been made against him. Just that, because he had some 

awareness of the witness’s “affiliation with certain clubs and relations to a lot 

other people around based on knowledge,” he “chose not to testify.” And, the 

trial court had taken steps to ensure that anything Lynch said on the record 

would be kept in the confines of the courtroom. The court dismissed the jury 

and asked the public to leave the room. The trial court also placed law 

enforcement officers outside the doors to ensure no one entered while Lynch 

spoke on the record. Further, the exchange makes apparent that the trial 

court did not express any improper opinion about whether Lynch should or 

should not testify. Obviously, the trial court was concerned that Lynch was 

not aware of the seriousness of the charges against him, and, reminding him of 

that, stated: “you’re being tried for murder here, and you’re saying that for fear 

of retaliation you don’t want to testify in your defense?” Lynch answered 

affirmatively, and concluded: “I don’t feel that at this time that it it’s going 

really change anything that’s been presented.” 

In his brief, Lynch does not assert that he did, in fact, desire to testify, 

nor does he argue that his trial counsel prevented him from testifying. To be 

clear, there was no state action that deprived Lynch of exercising his right to 

testify. Lynch has made no allegation that any threat levied against him, 
15

whether real or imagined, was made on behalf of the Commonwealth. And, 

Lynch’s counsel did not impermissibly inhibit that right. Lynch knew he had 

the right to testify and chose not to. The trial court did not prevent or limit 

him from exercising that right. Though under no obligation to do so, the trial 

judge sought briefly to confirm Lynch’s decision to waive his constitutional 

right to testify. We cannot say this was error, let alone an error that resulted in 

manifest injustice. The short of the matter is that Lynch invites us to find a 

constitutional violation (separate and distinct from a claim of ineffective 

assistance of counsel) in the infringement of an accused's right to present a 

defense by a private party alone, due to the fact that the trial court and defense 

counsel were aware that he was afraid of retaliation. 

Based on the foregoing, we reiterate that, generally, a trial court should 

refrain from engaging in direct colloquy with a defendant regarding the right to 

testify, unless the trial court is aware that trial counsel is overriding the 

defendant’s wish to exercise the right to testify. We will not foreclose the

opportunity for a defendant to seek review of the actions of a state actor 

working to prevent the defendant from exercising the right to testify. But, 

where the alleged impropriety lies with a private actor, we cannot say that the 

trial court did not, under either the federal or state constitutions, do enough to 

protect the defendant’s right. And, we cannot say that the trial court should 

have done more than what it did when it had not been asked to do more. As a 

result, we likewise cannot say that palpable error occurred in the instant case. 
16

In conclusion, assuming for the sake of Lynch’s argument that the threat 

against him was real,23 we hold that where a private actor has worked to 

impede a defendant’s right to testify, no constitutional violation occurs. A trial 

court should hold steadfast to the “no-inquiry” rule, unless that court is aware 

of an impediment to a defendant’s right to testify that has been impermissibly 

exercised by defense counsel or the Commonwealth. 

B. Lynch was not entitled to directed verdict on the charges of firstdegree rape or tampering with physical evidence. 

Lynch argues next he was entitled to directed verdict on the charge of 

first-degree rape.24 Ultimately, the trial court determined that there was 

enough evidence to submit the charge to the jury after hearing argument from 

both parties concerning Lynch’s motion for directed verdict. The trial court 

stated: 

I think that the evidence is sufficient for a jury to infer 

that from those circumstances, from the

circumstances that occurred at that time, that she was 

beat up and bludgeoned and found with his semen in 

her, that a reasonable jury could infer that it was a 

non-consensual sexual act, and that the bludgeoning 

occurred for the purpose of keeping her from reporting 

that, so I’m going to deny the motion.

In Commonwealth v. Benham, this Court explained: 

[o]n a motion for directed verdict, the trial court must 

draw all fair and reasonable inferences from the 

evidence in favor of the Commonwealth. If the 

 

23 Lynch did not state with specificity on the record what the threat was, or 

whether it was real or perceived. A perceived threat is, on an absent record, an 

imagined one. We cannot just assume that because Lynch says he was threatened 

that he was. 

24 This issue was preserved by Lynch’s motion for a directed verdict. RCr 9.22. 
17

evidence is sufficient to induce a reasonable juror to 

believe beyond a reasonable doubt that the defendant 

is guilty, a directed verdict should not be given. For 

the purposes of ruling on the motion, the trial court 

must assume that the evidence for the Commonwealth 

is true, but reserving to the jury questions as to the 

credibility and weight to be given to such testimony.25

“To defeat a directed verdict motion, the Commonwealth must only produce 

‘more than a mere scintilla of evidence.’”26 “On appellate review, the test of a 

directed verdict is, if under the evidence as a whole, it would be clearly 

unreasonable for a jury to find guilt, only then the defendant is entitled to a 

directed verdict of acquittal.”27

KRS 510.040 provides: 

(1) A person is guilty of rape in the first degree when: 

(a) He engages in sexual intercourse with another 

person by forcible compulsion.

KRS 510.010 states:

(2) “Forcible compulsion” means physical force or 

threat of physical force, express or implied, which 

places a person in fear of immediate death, physical 

injury to self or another person, fear of the 

immediate kidnap of self or another person, or fear 

of any offense under this chapter. Physical 

resistance on the part of the victim shall not be 

necessary to meet this definition.

We now examine the evidence adduced at trial related to rape in the first 

degree. The jury heard testimony and saw photos of bruising on Amanda’s 

 

25 816 S.W.2d 186, 187 (Ky. 1991). 

26 Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky. 2015) (quoting Benham, 

816 S.W.2d at 187).

27 Benham, 816 S.W.2d at 187.
18

body. Dr. Christopher Kiefer (Dr. Kiefer), who performed the autopsy on 

Amanda, could not say definitively whether the bruises on Amanda’s body

occurred before or after death. He noted, however, that bruising after death, 

while uncommon, can occur. Dr. Kiefer offered no testimony relating to 

injuries to the vagina or anus. There was no medical testimony that would say 

definitively that any bruising to Amanda’s arms, shoulders, or back was due to 

force applied by Lynch’s hands, or whether they were caused by him 

bludgeoning her to death. However, the Commonwealth specifically identified 

the bruising on Amanda’s arms, back, and shoulders, and pointed to the 

semen present in Amanda’s underwear, vagina, and anus to argue that all of 

this was evidence that Lynch held Amanda down to rape her, and then 

murdered her to cover up the rape. With the foregoing evidence in mind, we 

cannot say that “it would be clearly unreasonable for a jury to find guilt”

28 on 

the charge of first-degree rape. We agree with the trial court that “a reasonable 

jury could infer that it was a non-consensual sexual act, and that the 

bludgeoning occurred for the purpose of keeping her from reporting” the rape. 

Lynch contends next he was entitled to directed verdict on the charge of 

tampering with physical evidence. This issue was unpreserved.29 Lynch has 

requested review for palpable error.30 As this Court explained in Wahl v. 

Commonwealth:

 

28 Id. 

29 RCr 9.22. 

30 RCr 10.26.
19

Palpable error is one “easily perceptible, plain, obvious 

and readily noticeable.” “[T]he required showing is 

probability of a different result or error so fundamental 

as to threaten a defendant's entitlement to due process 

of law.” 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.”31

KRS 524.100 states:

(1) A person is guilty of tampering with physical 

evidence when, believing that an official proceeding 

is pending or may be instituted, he:

(a) Destroys, mutilates, conceals, removes or 

alters physical evidence which he believes is 

about to be produced or used in the official 

proceeding with intent to impair its verity or 

availability in the official proceeding.

We now examine the evidence adduced at trial related to tampering with 

physical evidence. The jury heard from Ellis that Amanda had her purse with 

her when she left the house with Lynch on the night she died. Cell phone data 

placed Lynch and Amanda’s phones together where her body was found. Both 

cell phone data and his own statement place Lynch in the approximate area 

that the purse was found on the night she died, but did not reflect whether he 

traveled along the exact path where Amanda’s purse was found by Cox. The 

jury was allowed to consider Cox’s story on how the purse was found and no 

claims against his credibility were made at trial. Lynch recognizes that a jury 

is allowed to make reasonable inferences from circumstantial evidence.

32

 

31 636 S.W.3d 484, 501 (Ky. 2021) (internal citations omitted). 

32 Commonwealth v. James, 586 S.W.3d 717, 722 (Ky. 2019).
20

Lynch argues that the circumstantial evidence in the case was weak because 

the purse was found by Cox over a month later in a creek and no forensic 

testing was possible, therefore, he should have been entitled to a directed 

verdict. The Commonwealth theorized that, after Lynch raped and murdered 

Amanda, he threw the purse in the river in an attempt to delay identification of 

Amanda’s body. Though there was no physical evidence that linked Lynch to 

the purse, the cell phone data placing Lynch in the area as well as his own 

admission, coupled with the time and nature of Amanda’s murder, as well as 

the physical evidence on Lynch’s shoes and Amanda’s body, all amount to 

“more than a mere scintilla of evidence.”33 Considering the whole body of 

evidence, it was not error—let alone palpable error—for the trial court to allow 

the jury to hear and consider the charge, because it would not be clearly 

unreasonable for the jury to find guilt beyond a reasonable doubt based upon 

that evidence. 

III. CONCLUSION

For the foregoing reasons, we affirm the Ohio Circuit Court. 

All sitting. All concur. 

 

33 Benham, 816 S.W.2d at 187.
21

COUNSEL FOR APPELLANT:

Jennifer Wade 

Assistant Public Advocate 

Department of Public Advocacy 

COUNSEL FOR APPELLEE:

Daniel J. Cameron 

Attorney General of Kentucky 

Jenny L. Sanders 

Assistant Attorney General

Office of the Attorney General