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THE ACTION. 
RENDERED: APRIL 18, 2024 

NOT TO BE PUBLISHED 

Supreme Court of Kentucky

2021-SC-0568-MR 

JOSHUA AUSTIN WARD APPELLANT

ON APPEAL FROM BOONE CIRCUIT COURT 

V. HONORABLE RICHARD A BRUEGGEMANN, JUDGE 

NO. 18-CR-00483 

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

 Joshua Austin Ward appeals from his concurrent life sentences without 

the possibility of parole imposed by the Boone Circuit Court following a jury 

trial in which he was convicted for the murders of Kelli Kramer (his former 

girlfriend) and her nine-year-old son, Aiden Kramer. Ward argues errors 

regarding denial of his right to present a defense in his role as hybrid counsel, 

denial of his motion in limine to limit the firearm toolmark examiner’s 

testimony, the offering of improper opinion testimony regarding a surveillance 

video, impermissible comments on his right to silence involving access to his 

cell phone, flagrant prosecutorial misconduct during closing argument, and 

denial of a directed verdict. We affirm because while errors occurred, they were 

either harmless where preserved or not palpable when unpreserved. We 

regretfully cannot address the argument regarding the firearm toolmark 
2

examiner’s expert testimony where the defense never requested a hearing 

pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

I. FACTUAL AND PROCEDURAL BACKGROUND

Ward was convicted of these murders partially based on firearm toolmark 

identification involving shell casings.1 A firearms toolmark examiner,2 Jennifer 

Owens, testified that nine .22 caliber shell casings found at the murder scene 

and two .22 caliber shell casings found at a farm where Ward target shot a year 

prior, were fired from the same firearm. Other evidence provided support for 

the jury to convict Ward but was not as definitive.

Although Ward was married, he was involved in an unusual polyamorous 

lifestyle. Ward desired to be the dominant male over several submissive females 

forming a family. Ward and his wife Karen were involved in Fetlife, a platform 

for people with sexual fetishes. Ward used this platform to look for additional 

girlfriends and to make other social connections. 

In 2016 and early 2017, Ward became involved with multiple women he 

met through FetLife: Diane Christos, Tonya Palmer, and Kramer. Kramer had a 

checkered past, but Ward was pleased she wished to make some changes in 

her life for her and Aiden to become part of “the family.”

1 To maintain consistency, we shall exclusively use this term. We recognize, 

however, that various overlapping terms are used interchangeably by experts, courts, 

scientific journals, the media and parties. These alternative terms include bullet 

casings, casings, cartridge casings, cartridges, fired cartridges, fired casings, spent 

cartridges, and spent casings; such terms may appear in sources we quote.

2 Alternatively, such an expert may be termed a “forensic firearms examiner.”

These terms are more precise than “ballistics expert” which may encompass other 

areas of expertise regarding firearms.
3

Five months into the relationship, in May 2017, Kramer left her cell 

phone at Ward’s home. Ward went through the phone and found messages that 

he believed established Kramer was prostituting herself. Ward was irate and 

determined he was “done” with the relationship. Ward contacted Kramer’s 

mother about her behavior, broke up with Kramer in front of her coworkers,

publicly shamed Kramer by signing onto her Facebook page and (while posing 

as Kramer) confessed that she was a prostitute and drug user, and outed the

behavior of one “John” by messaging his family members. 

Twice in May 2017, Ward drove to Kramer’s parents’ house and waited 

for Kramer without seeing her. According to Ward, he wanted to talk to Kramer 

about seeing Aiden but he gave up on the idea based on email exchanges they 

had later. Ward denied ever seeing Kramer again after he broke up with her in 

May 2017, or ever communicating with her after the end of that month.

After the breakup Ward had several conversations with other people, 

including Christos, Palmer, Adrienne Fiely, and Nicole Bohley, about how angry 

he was at Kramer for ruining his “family” and discussed how he wanted her to 

be held accountable. He also made statements about what he wanted to do to 

Kramer that they found disturbing.

In November 2017, Kramer became involved with another dominant male 

that she met on FetLife, David Sullivan. Sullivan broke up with his former 

girlfriend Sigma Novak to focus on his relationship with Kramer. 
4

Novak identified as a “primal” and fantasied about hunting someone 

down. While dating Sullivan, Novak had a habit of urinating around his home 

to “mark” her territory.

In February 2018, Novak became aware of Sullivan’s new relationship 

when Sullivan and Kramer attended a “Beat My Valentine” convention together.

Novak reacted jealously: she followed Sullivan around the convention and 

yelled at him, she tracked Kramer down and sent her messages about Sullivan, 

she contacted Ward about Kramer’s new relationship, and she used her 

children’s Facebook accounts to track down Sullivan.

According to Chelsea Ballard, on Tuesday, March 20, 2018, Kramer and 

Aiden visited Ballard, and Kramer and Ballard jointly bought

methamphetamine to resell. Kramer left Ballard’s home with Aiden at around 

10:00 p.m., stopped at a McDonald’s drive-thru at 10:20 p.m. and called 

Sullivan. At 10:46 p.m. Kramer’s phone connected to her Wi-Fi router. Sullivan 

texted Kramer at 11:11 p.m. asking “You home?” Kramer did not text back.

Sullivan drove to Kramer’s apartment, entered it at around 3:30 a.m. and 

discovered Kramer’s and Aiden’s bodies in the living room. There were no lights 

on, and Kramer and Aiden still wore their coats and shoes. Kramer had been 

shot six times; once in the leg and five times in the head. Aiden had been shot 

three times, once in the chest and twice in the head. 

There were no witnesses to the crime. The only definitive evidence which 

could connect any of the suspects or other individuals with the murder scene 

were the nine .22 caliber long rifle shell casings.
5

Ward agreed to be interviewed by police and voluntarily provided his 

DNA. Ward denied any involvement in the murders and was candid about the 

actions he took when he broke up with Kramer. 

Possible suspects emerged including Ward, Sullivan and Sullivan’s exgirlfriend, Novak. Kramer’s personal lifestyle (which included involvement with 

prostitution and drugs) and her reports to her friends naming other men as 

stalkers also suggested that others could be responsible for the murders. 

Palmer called a tip line and police learned about the troubling statements 

Ward had made to various women about Kramer. Police also learned from 

Sullivan that in December 2017, Kramer had texted him about seeing Ward at 

the Starbucks where she was working.

Investigators secured a video recording from the Starbucks and identified 

a man in an orange sweatshirt and hat who they believed was Ward. This led to 

the theory that Ward had been dishonest in his interview and was stalking 

Kramer. The Starbucks video was part of the basis for the grand jury returning 

an indictment. 

The police received search warrants for Ward’s residence and cell 

phones. The police did not find the orange sweatshirt from the Starbucks video 

or any other evidence linking him to the murders. Investigators were unable to 

access desired information on Ward’s current phone as the phone itself had a 

password and encryption. They also learned Ward used an app called Wickr to 

protect his data. 
6

Attempting to procure evidence connecting Ward with the murders, the 

police had Palmer meet with Ward while wearing a wire. Although Ward was 

clearly suspicious of Palmer’s questions, and even checked her for a wire which 

he did not find, he did not say anything incriminating.

Having learned that in the summer of 2017, Ward target shot with a .22 

caliber firearm at Palmer’s farm in Ohio, the police searched the farm looking

for .22 shell casings they could use to tie Ward to the murders. Investigators 

collected about twenty-five .22 shell casings from the farm and submitted two 

of those casings to the Bureau of Alcohol, Tobacco, Firearms and Explosives 

(ATF) for comparative analysis with the shell casings from the murder scene. 

Even though the murder weapon was never found, Owens concluded that all 

eleven shell casings (the nine shell casings from the murder scene and the two 

shell casings from the farm) came from the same firearm after performing a 

microscopic firearm toolmark analysis using a split microscope to compare the

samples. 

Prior to trial, Ward requested he be allowed to proceed with hybrid 

representation. This motion was granted, and Ward became co-counsel. To 

avoid confusion, we will generally designate actions taken on Ward’s behalf by 

his attorneys as “the defense” and will reserve use of Ward’s name to refer to 

actions he specifically undertook in his own self-representation at trial.

The Commonwealth Attorney requested via a motion in limine that Ward 

be prohibited from personally examining three witnesses that were afraid of 
7

him (Christos, Palmer and Fiely). Neither defense counsel nor Ward objected to 

such limitation. 

The defense filed a motion in limine to prohibit the Commonwealth from 

having its firearm expert Owens offer opinion testimony that the two sets of 

shell casings were fired from the same firearm.3 The defense specifically waived 

having a Daubert hearing but proposed that the certainty of Owen’s opinion 

should be limited further and proposed alternative language for her to use. 

Ultimately, the trial court determined it was acceptable under existing case law 

to allow Owens to testify that she believed both sets of shell casings came from 

the same firearm.

At trial, Owens testified that based on her analysis, all of the shell 

casings could be identified as having been fired from the same firearm because 

they had sufficient marks in agreement but acknowledged on crossexamination that her conclusions were subjective. Pictures of the shell casings

were admitted into evidence.

Steven Weitz, the chief of the DNA section at the ATF laboratory, testified 

he tested the shell casings found at the scene for DNA and compared it to DNA 

samples from Kramer, Aiden, Ward and Sullivan. Weitz testified that the shell 

3 Originally, the defense sought to prohibit Owens from: (1) testifying there was

a “match” between the shell casings recovered at the scene and the shell casings 

recovered at the farm; (2) stating her opinion to a degree of statistical or scientific 

certainty; (3) phrasing her opinion as being “to the exclusion of all other firearms;” and 

(4) testifying to any conclusion that the shell casings recovered from the scene and 

shell casings recovered from the farm were fired from the same firearm. During a 

hearing on this issue, the Commonwealth agreed that Owens would not engage in (1)-

(3) but argued Owens could properly testify as to (4).
8

casings DNA belonged to Kramer, Aiden and a third individual, with at least 

one of those individuals being a male. He explained that Ward was excluded as 

being a possible contributor to the DNA profile, but Sullivan could neither be 

included nor excluded as a contributor. He also testified that there were many 

reasons why a person’s DNA might not be on a shell casing, including that the 

person wore gloves. 

Detective Tony VonDerHaar testified he had recovered and inspected 

electronic devices belonging to Ward and could not access Ward’s current cell 

phone because it was encrypted. 

Detective Chris Hull testified about two black and white poor quality 

security videos from a Little Caesar’s restaurant which were filmed on the night 

of the murder and admitted into evidence. He narrated what he believed was 

occurring in the videos and testified to similarities between the “murderer’s 

vehicle” and Ward’s vehicle.

During Ward’s case-in-chief, Ward requested that counsel recall the 

Commonwealth’s witnesses because he wished to impeach them with 

inconsistencies. The trial court declined to require counsel to call and question

these witnesses and they were not recalled.

Ward testified and denied having any involvement in the murder. He 

explained his lifestyle and history with Kramer but testified that he had moved 

on with his life after the breakup, although he still cared about Aiden and had 

at one time hoped to stay being a part of his life. Ward denied knowing where 

Kramer lived. He denied leaving his home the night of the murder, explaining 
9

that he was ill. He admitted to knowing that Kramer worked at a Starbucks

because he had come across her picture in a Starbucks uniform on Tinder, but 

denied knowing at which location she worked or ever wearing an orange 

sweatshirt to a Starbucks.

During the cross-examination of Ward, the Commonwealth Attorney 

asked Ward whether he made it impossible for the police to access his phone. 

Ward replied that his phone’s operation system had inherent encryption but 

admitted he also had the Wickr app.

Karen testified that on the night of the murders she was working a 

twenty-four-hour shift and did not return home until the next day but when 

she returned home Ward’s car was covered with four inches of snow. It was 

established that Ward’s cell phone was on and using data within one mile of 

his home address, which was a forty-five-minute drive from Kramer’s 

apartment. 

Regarding the Starbucks video, the defense called Michael Edwards, who 

was located based on information from Starbucks that he had paid for a drink 

using the Starbucks app during the relevant time period of the video. Edwards 

testified he was the man in the video and produced the orange sweatshirt and 

baseball cap he had been wearing that day. Subsequently, the Commonwealth 
10

more-or-less conceded that it was Edwards and not Ward who was captured on 

the Starbucks video.4

The jury found Ward guilty of both murders and he was sentenced to life 

in prison in accordance with the jury’s recommendation. He appeals to our 

Court as a matter of right.

Given the concerns Ward raised about the firearm toolmark identification 

testimony and our understanding that this testimony was the “linchpin” which 

resulted in Ward’s conviction, our Court requested that the parties brief and 

provide oral argument as to whether we should reconsider our ruling in Garrett

v. Commonwealth, 534 S.W.3d 217, 222-23 (Ky. 2017), regarding the opinion 

testimony firearm toolmark examiners can properly provide in identifying 

samples as having come from the same firearm in light of the report generated 

by the United States President’s Counsel of Advisors on Science and 

Technology regarding valid forensic science in criminal courts (PCAST Report)5

and subsequent developments. We initially considered this issue preserved due 

to the motion in limine. The parties provided extensive briefing on this issue

and vigorously argued their positions during oral argument.

4 During the Commonwealth’s closing argument, the Commonwealth Attorney 

stated that she did not care if the man shown in the Starbucks video was Edwards or 

Ward because the murder did not happen at the Starbucks.

5 Executive Office of the President: President’s Council of Advisors on Science 

and Technology, Report to the President: Forensic Science in Criminal Courts: Ensuring 

Scientific Validity of Feature-Comparison Methods, 104-14 (Sep. 2016), https://

obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_fore

nsic_science_report_final.pdf (section relating to the validity of firearm toolmark 

identification).
11

II. LEGAL ANALYSIS

Ward raises six issues on appeal which we address in order.

A. Was Ward Denied his Right to Present a Defense when he was Not 

Allowed to Recall Witnesses as Hybrid Counsel? — Preserved

Prior to trial, Ward requested and was granted, via a March 12, 2021, 

written order, the right to “proceed as hybrid counsel throughout this matter.”

The trial court specifically granted Ward broad powers of self-representation 

through proceeding as hybrid counsel, specifying:

[Ward] shall be jointly responsible for cross-examination of all 

witnesses called by the Commonwealth; and to raise any objections 

to evidence. [Ward] shall be jointly responsible for deciding whether

to produce any witnesses at trial or to introduce any exhibits. . . . 

It will be [Ward’s] joint responsibility to make all strategic decisions 

which would include whether to testify; to call other witnesses; 

and, to offer exhibits and other evidence.

Prior to trial, the Commonwealth filed a motion in limine to prohibit the 

examination of Palmer, Christos, and Fiely by Ward personally, explaining 

these witnesses were afraid of Ward. However, the Commonwealth stated it did 

not object to Ward “being allowed to prepare questions and consult with cocounsel both before and during the direct or examination of Palmer, Christos, 

and Fiely.” The Commonwealth also noted that it did not object to Ward 

personally cross-examining other Commonwealth witnesses.

During an October 2, 2021, hearing on this and other matters, Ward and 

his defense counsel were present. The trial court acknowledged that Ward was 

hybrid counsel, had counsel enter appearances and then asked about the 

Commonwealth’s motion in limine concerning the examination of certain 

witnesses. The Commonwealth stated that no objection had been received and 
12

the defense counsel stated there was no objection. By virtue of the hybrid 

counsel motion being granted, Ward was on notice that he could participate in 

his own representation, but Ward did not ask for clarification or contribute in 

any way.

Later in that same hearing, the trial court stated that it needed the 

ground rules established for how the hybrid representation would work during 

trial so there would be no misunderstandings. Defense counsel briefly 

conferred with Ward and then replied:

I think he’s wanting me [and other defense attorney] to take on 

basically all the trial work. I think he wants to be involved, but I 

don’t plan on having him do anything that counsel will be doing. 

Me or [other defense attorney] will be cross examining, 

examinations, voir dire, etcetera, arguing most objections. I think 

he does want to be present for bench conferences.

Ward did not say anything.6 The Commonwealth had no objection to this 

division of responsibilities.

A dispute on the defense’s trial strategy arose between counsel and Ward 

mid-trial and counsel requested and received an ex-parte conference to address 

this issue. Ward explained that the previous day when discussing trial strategy 

with counsel, he learned for the first time that counsel had no intention of 

recalling the Commonwealth witnesses during his case-in-chief. Ward 

explained he had listened to counsel’s reasoning, had thought about it, but he 

6 In a hybrid counsel situation, it would be prudent for the trial court to 

specifically ask whether the defendant wished to respond to what defense counsel had 

stated and/or whether the defendant agreed with this representation as to how their 

duties would be divided. However, such proactive behavior on the part of the trial 

court is not required. Ward had the obligation to speak up if he disagreed with how 

their duties would be divided.
13

still wanted these witnesses recalled as he wanted to impeach them with 

contradictions. 

Ward explained his belief that one witness’s testimony was an “absolute 

case of perjury” with “numerous misstatements that can easily be, with records 

that already exist, proven false.” Ward maintained that as to these witnesses, 

“to not degrade that testimony further I feel leaves a false impression on the 

strength of those witnesses in the minds of the jury and so I’d ask that they be 

recalled . . . . [Counsel’s] response was ‘no,’” because counsel “didn’t feel like 

‘cutting our wrists’ by recalling them.” 

Ward mentioned specifically that he wanted to “show some of the 

criminal or negligent conduct by some of the officers in this case” and felt that 

not recalling some of the witnesses on their contradictory statements “leaves 

me in a very bad position as a defendant.” Ward stated, “I know that I have no 

legal capability to make [counsel] do as I’ve requested.” He explained that if he 

had known counsel was not going to recall these witnesses, he would have 

insisted on a more thorough cross-examination.

Counsel responded that “he wants to recall some of the witnesses like 

[Palmer], [Christos], [Fiely], [Bohley] potentially,” explained counsel thought the 

cross-examinations against them had gone well, and feared recalling them “to 

establish very minor tweaks” and opening them up to cross-examination by the 

Commonwealth would “result in completely obliterating the work we have done 

thus far,” opining that it would be negligent to recall those witnesses, and 

doing so would “fail tremendously.” 
14

The trial court repeatedly urged Ward and counsel to try to resolve their 

dispute and come to an agreement. When no progress was made, the trial court 

suggested that perhaps Ward could personally recall the witnesses. 

Counsel responded, “I would be totally fine with it if he would take it over 

and he would recall his witnesses if he wants, to ask them questions. But the 

pretrial ruling is that those particular witnesses that he wouldn’t be allowed to 

examine.”

The trial court confirmed that the pretrial ruling was going to stand. 

Ward did not express any dispute with this ruling or the process by which it 

had been made.

Counsel then explained “So it’s put back on me, like, I’d essentially be 

asking the questions that he asks, and then it just turns me into his puppet as 

opposed to counsel. I’d no longer have any autonomy.”

The trial court responded, “There are limits as you know of things that 

an attorney is required to do,” urged Ward and counsel to reach an agreement, 

stating “I am certainly not going to give a directive that you [counsel] have to do 

that” and if there was an impasse on the issue, it was preserved for appeal.

The witnesses that Ward asked to recall were not recalled by counsel or 

by Ward.7

7 It is unclear whether these witnesses had been finally dismissed or were 

subject to recall, and whether it was feasible to recall them without delaying the trial.

In the absence of any discussion of this issue, we do not consider these potential

complications further.
15 

Ward argues that because the trial court did not require counsel to recall 

and examine the Commonwealth’s witnesses that Ward was deprived of his 

Sixth Amendment right to self-representation, thus denying him the right to a 

defense of his own choosing. He argued this constituted a structural error 

which does not require that he demonstrates harm to require reversal. 

Hybrid representation strikes a balance between the right to selfrepresentation and the right to counsel. 

Kentucky courts view hybrid counsel as self-representation, in 

part. That is, the defendant makes a limited waiver of counsel 

whereby he acts as co-counsel with a licensed attorney. The 

defendant specifies the extent of legal services he desires, but 

undertakes the remaining portion of his defense pro se. 

Allen v. Commonwealth, 410 S.W.3d 125, 138-39 (Ky. 2013) (citation footnotes 

and quotation marks omitted). 

All defendants have certain constitutional rights which must be honored, 

“no matter how unwise[.]” Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir. 1988). 

“[W]hen a defendant chooses to have a lawyer manage and present his case, 

law and tradition may allocate to the counsel the power to make binding 

decisions of trial strategy in many areas.” Faretta v. California, 422 U.S. 806, 

820 (1975). In such a situation, counsel is generally empowered to “sail the 

trial ship.” Hall v. Commonwealth, 557 S.W.2d 420, 423 (Ky. 1977). That is, 

defense counsel is generally empowered to make all final decisions that are not 

constitutionally reserved to the defendant. That does not mean that a 

defendant does not contribute to this decision-making process but does not 
16 

“make the final call” for most strategic decisions. This is permissible because 

“the accused has acquiesced in such representation.” Faretta, 422 U.S. at 821. 

When a defendant asserts the right to hybrid counsel, the defendant 

“dictat[es] the extent of counsel’s involvement[,]” with the trial court only 

permitted to “structure the role and scope of hybrid counsel[.]” Major v. 

Commonwealth, 275 S.W.3d 706, 722 (Ky. 2009). Splitting the role of counsel 

in such a situation can result in “countless variations on how the duties of the 

defense will be divided between a defendant and his hybrid counsel.” Nunn v. 

Commonwealth, 461 S.W.3d 741, 750 (Ky. 2015). Accordingly, reviewing courts 

“also give correspondingly wide, but not unlimited, latitude to the trial judges 

to manage those countless variations in their effort to accommodate a 

defendant’s desire for hybrid counsel.” Id. 

In a hybrid counsel situation, the defendant has acquiesced in part to 

representation by defense counsel. How, then, are common disagreements 

between defense counsel and a defendant (which do not involve constitutional 

rights which are always reserved for the defendant’s decision) to be resolved, 

such as what questions should be asked of witnesses and what trial strategy 

should be pursued? Despite disagreements about such matters, “lawyers are 

charged with protecting their client’s interests.” Zapata v. Commonwealth, 676 

S.W.3d 390, 401 (Ky. 2020). 

Ward inadequately alleges he did not understand he was being deprived 

of the option to examine certain witnesses during the brief hearing on this 

matter and would have objected if he had known. However, any error in this 
17

regard was harmless because the trial court’s decision on this matter was 

reasonable under the circumstances. See Partin v. Commonwealth, 168 S.W.3d 

23, 27-29 (Ky. 2005) (explaining that a defendant acting as co-counsel does not 

have a constitutional right to personally cross-examine victims and intimidate 

witnesses any more than a self-represented defendant would) superseded on 

other grounds by statutory amendment as noted in Stansbury v. Commonwealth, 

454 S.W.3d 293, 299 n.1 (Ky. 2015); Allen, 410 S.W.3d at 134 (explaining that 

trial courts may appropriately place certain restrictions on a defendant’s right 

to self-representation, including requiring defense counsel to cross-examine 

victim-witnesses instead of the defendant).

We review whether Ward’s right to hybrid representation was violated 

when the trial court allowed counsel to overrule Ward’s strategic decision to 

require counsel to recall Commonwealth witnesses during his case-in-chief so 

that counsel could further impeach them. Prior to this time, counsel was 

conducting the trial and Ward was largely acting as co-counsel in name only.

This was in accordance with the division of representation established pretrial. 

Each witness Ward wanted to call had already been vigorously crossexamined by counsel during the Commonwealth’s case-in-chief. For those 

witnesses whom he wanted to recall but could not personally question, it is 

well established that the appropriate solution would have been for Ward to 

prepare questions for counsel to use to question such witnesses on his behalf.

See Partin, 168 S.W.3d at 28-29.
18

The right to hybrid counsel does not give a defendant more rights than 

defendants who chose to have counsel represent them or to engage in selfrepresentation; it instead combines these rights. If any error occurred, it was 

harmless.

B. Were the Objections to the Firearm Toolmark Examiner’s Expert’s

 Testimony Adequately Preserved through the Motion in Limine, and if 

 so, should this Testimony have been Excluded or Limited?—Partially 

 Preserved

In a five-page motion in limine, the defense sought to prohibit the 

Commonwealth from:

[E]liciting any testimony—direct or indirect—using terms such as 

“match,” stating an opinion to a degree of statistical or scientific 

certainty, or phrasing an opinion “to the exclusion of all other 

firearms.” More specifically, the Defense objects to any testimony 

concluding that the shell casings and other ballistic evidence were 

fired from the same firearm.

In support of that restriction, the defense discussed Garrett and argued that its 

decision as to the appropriateness of admitting such evidence was limited 

because it relied on United States v. Otero, 849 F.Supp.2d 425 (D.N.J. 2012), 

aff’d 557 Fed. Appx. 146 (3rd Cir. 2014), and neither case considered the 

PCAST Report (which was released after Otero and the trial court decision in 

Garrett). The defense argued a more in-depth Daubert analysis in other 

jurisdictions had revealed that the methods used in firearm toolmark analysis 

“largely fails the fourth prong of Daubert” as the standard put out by the 

Association of Firearm and Toolmark Examiners (AFTE) in its AFTE Theory of 
19

Identification8 is entirely subjective, justifying limiting the degree of certainty 

that Owens could express.

The Commonwealth conceded to certain limitations as being appropriate 

but cited to Garrett, an unpublished opinion, and its own list extrajurisdictional cases as to why it should still be acceptable for Owens to 

conclude that all of the shell casings came from the same firearm.

During the hearing regarding the defense’s motion in limine, given the 

Commonwealth’s concessions, the only issue under consideration was whether 

it would be proper for Owens to opine, consistent with her written report, that 

the nine shell casings collected from the murder scene and the two shell 

casings collected from the farm were fired from the same firearm. The trial 

court specifically inquired as to whether the defense was requesting a Daubert

hearing. The defense replied “no” and then proceeded to criticize the 

foundational validity of the science of firearm toolmark analysis.

The defense acknowledged that the markings on the shell casings were 

objective evidence, but explained it was concerned with how such objective 

data was being subjectively interpreted. Specifically, the defense noted that 

unlike fingerprints in which a certain number of corresponding “pits” were 

required to determine a match, there was no such controlling criteria for 

matching shell casings, and the PCAST Report had criticized that the supposed 

8 AFTE Theory of Identification as it Relates to Toolmarks, Association of Firearm 

and Tool Mark Examiners, https://afte.org/about-us/what-is-afte/afte-theory-ofidentification (last visited Mar. 14, 2024).
20

high match rate in studies was the result of a lack of appropriate “black-box” 

studies and deeming inconclusive results as not being identification errors. 

However, the defense conceded that under existing case law in Kentucky 

the methodology Owens used to make her firearm toolmark identification of the 

shell casings could not be attacked as it had previously been ruled to satisfy 

Daubert in Garrett. Therefore, the defense explained it was not challenging 

Owens’s method or credentials. Rather, it sought to limit the certainty Owens 

could express in testifying about her ultimate opinion. 

The defense requested that Owens be required to phrase her opinion in 

more neutral terms and be limited to opining that the shell casings “were 

consistent with having been fired from the same firearm.” (Emphasis added). 

The trial court rejected this proposed limitation as “not much different,” but 

stated the objection was preserved for higher court review.

As previously mentioned, we had the parties specifically brief and argue 

the sole issue of whether we should reconsider our ruling in Garrett regarding 

whether firearm toolmark examiners could testify to their conclusions that 

ballistic samples came from the same firearm. Ward’s counsel in supplemental 

briefing and oral argument presented two alternative requests: to exclude such 

evidence entirely or to limit expert identification testimony to “cannot be 

excluded as having been fired from the same firearm.” (Emphasis added). 
21

1. Admissibility of Expert Testimony on Firearm Toolmark 

 Identification in Kentucky

Expert opinion regarding firearm toolmark identification has long been 

admitted in Kentucky. See Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 

58, 60 (1948). 

In Garrett, the defendant asked for a Daubert hearing, arguing firearm 

toolmark identification did not meet the criteria set forth in KRE 702 for 

admissibility because it was no longer considered reliable pursuant to a 2009 

report produced by the National Research Council entitled Strengthening 

Forensic Science in the United States: A Path Forward (NRC Report).9 Garrett, 

534 S.W.3d at 221-22. After a Daubert hearing, the trial court upheld the 

reliability of such expert testimony, allowing the firearm toolmark examiner to 

testify that the fired bullets matched a particular firearm.

Our Court affirmed, relying on Otero. While our Court acknowledged that 

there was a subjective component to the analysis, it concluded a firearm 

toolmark examiner could properly opine the bullets “were fired from the same 

firearm” because this opinion was not couched in “‘absolute certainty’ so as to 

require exclusion.” Garrett, 534 S.W.3d at 222-23. Our Court held that “[t]he 

proper avenue for Garrett to address his concerns about the methodology and 

9 National Research Council, Strengthening Forensic Science in the United States: 

A Path Forward, The National Academies Press, 150-55 (2009), https://nap.

nationalacademies.org/read/12589/chapter/7#150 (section pertaining to firearms 

toolmark identification).
22

reliability of [the firearm toolmark examiner’s] testimony was through crossexamination, as well as through the testimony of his own expert.” Id. at 223.

2. Ward’s Specific Challenge 

Before trial, the defense sought to limit the scope of Owens’s expert 

testimony through a motion in limine and specifically denied that it was

requesting a Daubert hearing. Ward now seeks to ban expert testimony 

regarding firearm toolmark analysis as unreliable or limit the definitiveness of 

such opinion testimony.

Unfortunately for Ward, the defense did not appropriately preserve its 

current challenge through its motion in limine, even though Owens’s testimony 

was anticipated to be powerful, and the shell casings were the only physical 

evidence which could connect Ward to the murders. Although Garrett was 

potentially controlling as to who bore the burden of establishing whether such 

evidence could be admitted and what limitations to such testimony were

appropriate, the admission of Owens’s expert testimony and how she could 

present her expert opinion could still be challenged by the defense requesting a 

Daubert hearing and providing an expert to support its arguments. Relief was 

not precluded. Even if such a motion may have been denied consistent with

Garrett and Williams, this would have preserved the record to allow our Court 

to consider whether such a hearing should have been granted based on the 

arguments and materials submitted to the trial court for consideration. 

Given the substantive although not unchallenged authorities that Ward

was able to produce on appeal, including recent opinions from our sister courts
23

retreating from the wholesale admission of such evidence, there were certainly 

ample grounds to challenge whether Owens’s expert opinion should be limited 

or qualified in some manner. While Garrett provides a basis for concluding that 

firearm toolmark examiners’ expert testimony is generally admissible, it does 

not justify failing to hold a Daubert hearing as to the appropriate limitations to 

such testimony because the definitiveness of such identification is unsettled. 

Although we understand that challenging what appears to be controlling law is 

a difficult road to follow, forgoing a request for a Daubert hearing was a fatal 

decision which precludes relief on appeal. See Tharp v. Commonwealth, 40 

S.W.3d 356, 368 (Ky. 2000).

While we acknowledge that Ward’s argument about limitations to be 

placed on Owens’s expert opinion testimony were nominally preserved based 

upon the defense motion in limine, such limitations could not appropriately be 

explored without the accompanying request for a Daubert hearing to create a 

record supporting why such limitations were appropriate. Additionally, the 

limited relief the defense requested—that Owens’s testimony be modified to 

state that both sets of shell casings “were consistent with having been fired 

from the same firearm”—was abandoned on appeal in favor of the different and 

more expansive limitation of “cannot be excluded as having been fired from the 

same firearm.” We agree with the trial court that the original requested 

limitation would not have much impact and, therefore, any error in failing to 

grant this modification is harmless. We cannot provide Ward with specific relief 
24

that was not pursued and preserved below and must affirm the admission of 

such evidence. 

C. Did Detective Hull Offer Improper Opinion Testimony when he 

 Interpreted Security Videos; Alternatively, should these Videos have 

 been Excluded as Irrelevant? — Partially Preserved

Detective Hull provided a timeline of events based on the evidence he had 

reviewed which included his narration of timestamped black and white 

surveillance video recorded by two cameras at a Little Caesar’s store. The jury 

saw individual videos from each camera and then a spliced video.

The Little Caesar’s videos captured a view of what Detective Hull opined 

were two different vehicles driving on the street that provided the only 

vehicular entrance into the apartment complex where Kramer and Aiden lived. 

The recording from the front camera offered a somewhat better view. The back 

camera captured a much smaller glimpse of a vehicle which was reflected from 

the front of the apartment building doors in just a small corner of the video 

recording. There appeared to be no illumination beyond the store lights and, 

so, it was mostly the vehicles’ lights that were captured, along with vague 

shapes of the automobiles. 

Without objection, the videos were introduced into evidence and 

Detective Hull narrated his impressions. He stated that a vehicle appeared to 

enter the apartment complex at 10:13 p.m., a second vehicle arrived at the 

complex at 10:46 p.m. (which he opined was Kramer’s vehicle based on when 

her phone connecting to her apartment Wi-Fi router at 10:51 p.m.), and then 

the first vehicle reappeared at 11:31 p.m., pulling into a parking spot and being 
25

left running for about a minute. Detective Hull noted when the vehicle’s lights 

went off, opined it was running based on a reflection of exhaust, noted that its 

lights came back on at 11:33 p.m. and then the vehicle backed out and left. 

The Commonwealth Attorney asked Detective Hull: “So what do you 

think we’ve just witnessed here, based on your investigation and viewing of 

this?” Ward objected on the basis that Detective Hull was speculating as all 

that could be seen were vehicles driving by and headlights, and that it was for 

the jury to decide what this meant, not Detective Hall who was “not qualified to 

do that.” The Commonwealth Attorney countered that it was appropriate for 

Detective Hull to provide his theory of the case. Ward countered that he 

believed that was appropriate for closing argument and not an appropriate 

question.

The trial court overruled the objection, stating that it was appropriate for 

the detective to provide his conclusions based on his observations and, to the 

extent this was weak evidence, that could be uncovered by cross-examination.

Detective Hull responded he believed the video provided the timeframe of 

what occurred between the time Kramer’s vehicle arrived and when the other 

vehicle left, when “[Kramer] and Aiden were executed,” explaining that there 

was no outgoing activity on Kramer’s phone after her phone connected to the 

Wi-Fi. 

Detective Hull next testified that, although he could not make out a 

license plate or who the operator was of the vehicle he suspected was driven by 

the murderer, he took steps to determine what vehicle it may have been. He 
26

explained, based on pictures of Ward’s vehicle and stills of the suspicious 

vehicle taken from the surveillance videos, he believed both vehicles had 

similar features and could not exclude Ward’s vehicle from being the same 

vehicle as in the video. Exhibits were admitted comparing the vehicles.10

Detective Hull noted that when asked to identify vehicles he looks at distinct 

features such as headlights, taillights, bumpers, any damage and whatever else 

stood out. 

The defense objected, stating that Detective Hull had not been identified 

or noticed as an expert, explaining counsel believed that he was getting into 

expert testimony about his ability to determine if Ward’s vehicle matched the 

vehicle in question, which was a matter for the jury to determine. The trial 

court ruled that Detective Hull would be allowed to answer what he found 

significant in comparing the images without being proffered as an expert, but 

limited his further testimony, explaining “I’m not going to allow him to express 

an opinion as to whose car this was.” Detective Hull then testified as to the 

similarities he perceived regarding the back bumper, how the brake lights 

reflected on a dead and curved area, the basic geometry of the front hood, front 

quarter panel and headlights.

During cross-examination, the defense refreshed Detective Hull’s 

recollection and got him to acknowledge he had asked Christos in her interview 

10 The photographs of Ward’s vehicle were colored photographs taken in the 

daytime with the lights off; the photographs of the second vehicle were black and 

white, blurry, with the lights on and not taken at the same angle.
27

if Ward could have borrowed her daughter’s boyfriend’s vehicle and he stated to 

her that he did not think the vehicle he saw in the video was Ward’s vehicle. 

Other witnesses testified that they were asked by police if Ward had ever 

borrowed their vehicles and they all answered “no.”

During the Commonwealth’s closing argument, it argued that the video 

showed Ward’s vehicle rather than Sullivan’s, and the “quick in and out” of the 

vehicle showed what a cold and calculated murderer Ward was.

Ward argues that pursuant to Kentucky Rules of Evidence (KRE) 602, it 

was improper for Detective Hull to interpret what was on the video because he 

did not personally witness the recorded events and was a lay witness whose 

testimony was limited per KRE 701, and that in doing so he impermissibly 

invaded the province of the jury. He argues that Detective Hull’s testimony was 

prejudicial where he indicated he could see Kramer’s vehicle, Ward’s vehicle,11

and determine the timing of the murders, noting that a jury would be likely to 

think a police officer’s testimony on such a matter was reliable. Ward argues 

that the timing the detective assigned to the murders and the identification of 

the suspicious vehicle as being his harmed him as it placed him at a murder 

11 We note Ward overstates Detective Hull’s testimony, repeatedly indicating 

that Detective Hull identified the suspicious vehicle as being Ward’s. In fact, Detective 

Hull never identified Ward’s vehicle as matching the vehicle he attributed to the 

murderer. Earlier, and without objection, Detective Hull stated that he could not 

exclude Ward’s vehicle. Detective Hull’s subsequent testimony was only that he 

thought certain features were similar between the two vehicles.
28 

scene where there was virtually no evidence linking him to the murders and 

eliminated Sullivan and various others as alternative perpetrators. 

 Alternatively, Ward argues that the videos should have been excluded as 

irrelevant, because the poor quality of the videos was of limited probative value 

and was substantially outweighed by the danger of undue prejudice pursuant 

to KRE 403. 

 Ward concedes that these issues are only partially preserved through his 

prior objections and requests palpable error review to the extent the issues he 

raises on appeal are unpreserved. 

 Ward’s argument that all of Detective Hull’s interpretations of the videos 

were improper is subject to palpable error review. Pursuant to Kentucky Rules 

of Criminal Procedure (RCr) 10.26: 

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

be considered . . . 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. 

 In discussing the relevant rules about lay witnesses testifying about 

videos, our Court in Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 

2014), explained as follows: 

KRE 701 limits opinion testimony by a lay witness to that which is 

“[r]ationally based on the perception of the witness; [and] . . . 

[h]elpful to a clear understanding of the witness’ testimony or the 

determination of a fact in issue.” KRE 701(a)-(b). In addition, KRE 

602 requires a witness to have personal knowledge before being 

allowed to testify about a subject. 

We further clarified in Boyd v. Commonwealth, 439 S.W.3d 126, 131 (Ky. 

2014), that “narration of a video may be proper but only if it is comprised of 
29 

opinions and inferences that are rationally based on the witnesses’ own 

perceptions of which he had personal knowledge and that are helpful to the 

jury.” (Emphasis added). In contrast, it is improper for witnesses to narrate a 

video of “events that they did not perceive in real time.” Boyd v. 

Commonwealth, 439 S.W.3d 126, 131-32 (Ky. 2014). If a video is unclear and 

there is uncertainty as to which of the actions the person narrating the video 

had personal knowledge, such narration should not be permitted. Kimmel v. 

Commonwealth, 671 S.W.3d 230, 245 (Ky. 2023). Even when witnesses have 

personal knowledge of the recorded events, narration is “improper when the 

witnesses interpret the footage or offer an opinion.” Boyd v. Commonwealth, 

439 S.W.3d 126, 131 (Ky. 2014). Compare with Cuzick v. Commonwealth, 276 

S.W.3d 260, 266 (Ky. 2009) (appropriate to allow officers who participated in a 

police chase to answer questions relating to videos captured by in car cameras 

as this was “proper lay opinion testimony which was beneficial to the jury”); 

Prescott v. Commonwealth, 572 S.W.3d 913, 928 (Ky. App. 2019) (confirming 

that it was appropriate for a witness to narrate videos of “relatively poor 

quality” where that witness “had firsthand knowledge of everything the videos 

portrayed” as it “certainly helped clarify what the video portrayed in a manner 

helpful to the jury”). 

 We do not perceive any error in Detective Hull explaining where the video 

was obtained, the locations shown in the videos, and the timing of the videos in 

relationship to when security footage recorded Kramer at the McDonald’s and 

when her Wi-Fi connected in her apartment complex. This was helpful for the 
30

jury to understand what it might be viewing in the overall timing of other 

events. 

However, it was improper for Detective Hull to narrate the events 

depicted in the videos, as he did not personally observe these events as they

occurred, and it was improper for him to interpret for the jury what he saw in 

the videos since interpreting the videos should have been left to the jury. The 

jury should have been allowed to interpret for itself whether the vehicle first 

seen at 10:13 p.m. was the same vehicle seen at 11:31 p.m., what the vehicle 

was doing between 11:31 p.m. and 11:33 p.m., and whether it was kept 

running or not, and whether the vehicle that appeared shortly before Kramer’s 

Wi-Fi connected was Kramer’s vehicle. However, we do not believe that 

Detective Hull’s testimony as to these matters constituted palpable error.

Similar errors were not concluded to be palpable in Kimmel where the 

jury viewed the video and could independently interpret it, and the evidence 

against the defendant was substantial. 671 S.W.3d at 245. Detective Hull’s 

testimony was certainly not definitive on the matter, and we believe it was 

harmless.

As to the testimony regarding comparing Ward’s vehicle to the vehicle 

Detective Hull speculated was used by the murderer, Ward permitted without 

objection for Detective Hull to testify that he could not exclude Ward’s vehicle, 

and to explain the commonalities he would look for in comparing vehicles, only 

objecting when Ward believed Detective Hull was about to give an opinion that 

Ward’s vehicle was a match. However, that objection successfully prevented 
31

Detective Hull from being able to state such an option, and he only proceeded 

to testify as to similarities. As the jury had the stills from the video and 

photographs of Ward’s car before it during deliberation and could ask to view 

the videos again (and did as to one video), jurors could judge for themselves 

whether they thought these vehicles were similar or a match. So, while it was 

error to permit such testimony, we believe this testimony was harmless, 

especially in light of the effective cross-examination. We also believe it is within 

the jury’s common knowledge that many vehicles may appear similar as vehicle 

manufacturers make many identical vehicles and the stills did not reveal the 

color of the vehicle or any striking identifying characteristics.

We disagree with Ward that the Commonwealth did not satisfy the low 

bar for relevance. While the video recordings were of rather poor quality and 

were certainly not definitive regarding what took place inside Kramer’s 

apartment, they are sufficient to meet this standard as these videos could 

depict the movement of vehicles which was relevant to the timeline of when 

Kramer arrived home and when a vehicle possibly connected to the murders 

left. 

D. Was Ward Denied his Right to Silence when Questions were Asked 

 about his Phone Encryption and Preventing Police from Accessing 

 Information on his Phone? – Partially Preserved

After Ward was arrested, a search warrant was issued which included 

seizure of his phones. Once his current phone was in police custody, the police 

were unable to access its contents. 
32

During the Commonwealth’s case-in-chief, various witnesses provided 

testimony that Ward touted the Wickr app as providing phone privacy and 

either asked them to install that app or assisted them with installing it on their 

phones.

During Detective VonDerHaar’s testimony, Ward objected preemptively to 

anticipated testimony from him indicating that Ward would not give the police 

the password to unlock his cell phone, arguing this was akin to commenting on 

his right to remain silent. The Commonwealth agreed not to specifically ask if 

Ward refused to give the police his passwords and the trial court determined 

that the detective could appropriately testify that he could not access the 

contents of Ward’s phone because it was encrypted. Detective VonDerHaar 

testified in accordance with this restriction.

When Ward took the stand, he testified he had installed the Wickr app 

on his phone to conceal messages as he believed it would be helpful for being a 

hypnotist, explaining it would allow him to maintain privacy which was 

important in such a profession. During cross-examination, the following 

exchange took place:

CW: You made it impossible for anyone to look into your 

phone? 

Ward: Nuh, if you wish to consider the inherent encryption 

on the phone, but as was testified to, Aiden also had 

the same phone. That’s just part of that phone’s 

operation [sic] system.

CW: But Aiden didn’t have Wickr, you did.

Ward: I did.
33

CW: And you installed it on [Fiely’s] phone?

Ward: I did not install it. She installed it herself.

CW: Okay, I’m sorry. You installed it on [Palmer’s] phone?

Ward: I did. At their request.

CW: So, your testimony—

Ward: Asked if willing to do it, would, asked me to install it.

Ward argues on appeal that this questioning and the subsequent 

answers to it violated his right to silence. Ward argues: “The Commonwealth 

clearly invited the jury to infer guilt from [Ward’s] refusal to turn over his 

password.” 

Relevance is the fundamental bedrock on which all evidence initially 

becomes admissible at trial. Ward’s argument and the Commonwealth’s 

response thereto, assume that the police’s inability to access the contents of 

Ward’s cell phone is relevant to establishing whether Ward murdered Kramer 

and Aiden. However, there is no logical reason why this is so.

While the police secured a warrant to seize the phone and access its 

contents, this is no more than an acknowledgment of the fact that information 

relevant a crime potentially could be found within it and not any kind of proof 

that such kind of information did exist. A cell phone which is seized but whose 

contents cannot be accessed is a complete unknown. A locked cell phone either 

has incriminating content in the data contained therein or it does not. But if 

the cell phone data is never accessed, it cannot be determined if its contents 

are incriminating and therefore relevant.
34

Similarly, the fact that a cell phone is password protected has no 

relevance. Password protection on cell phones was and continues to be

ubiquitous, and other newer protections such as biometric access are similarly 

gaining widespread use. Encryption can be built into a cell phone’s operating 

system, with some companies specifically designing cell phones to protect 

privacy through heightened security measures.12 It is also not unusual for 

people to protect their privacy by using specific apps. Ward using the Wickr 

app, suggesting its use to other people, and recommending or assisting in its 

installation is totally irrelevant to the decision of whether he is a murderer.13

Having a password and/or encryption protection on a cell phone is neither

evidence of guilt nor provides for an inference that any evidence of guilt may be 

found therein. It is equivalent to a person locking their vehicle or house door. 

The right to privacy in one’s effects/possessions is enshrined in the 

Fourth Amendment and in Section 10 of the Kentucky Constitution. The 

contents of a cell phone are entitled to such protection. Riley v. California, 573 

U.S. 373, 401 (2014). See also Carpenter v. United States, 585 U.S. 296, 309-

11 (2018) (determining a warrant is required to access data to map a person’s 

12 Apple products such as the iPhone have hardware security, system security, 

encryption and data protection, app security, and services security as part of Apple’s 

basic platform. Apple Platform Security, Apple, https://support.apple.com/guide

/security/welcome/web (last visited Mar. 14, 2024).

13 We are uncertain why the Commonwealth “made a mountain out of this 

molehill” by repeatedly asking witnesses about Ward’s conduct relating to this app.
35

movement based on cell phone records); Commonwealth v. Reed, 647 S.W.3d 

237 (Ky. 2022).

When a search warrant is granted for a cell phone, whether the police in 

fact gain access to its data is up to them. There is no duty for citizens to assist

police in criminal investigations. This is not altered by a warrant being 

served.14

Requiring such a duty to assist the police in accessing the contents of 

one’s phone or apps would turn the right to privacy found in the Fourth 

Amendment/Ky Const § 10 on its head and run afoul of the right not to 

incriminate oneself found in the Fifth Amendment/Ky. Const. § 11. It is well

established that a defendant’s choice to remain silent during a custodial

interrogation cannot be used against a defendant by the Commonwealth to

establish guilt. Miranda v. Arizona, 384 U.S. 436 (1966). Exercising one’s

constitutional rights cannot be offered as evidence of guilt. Commonwealth v.

McCarthy, 628 S.W.3d 18, 36 (Ky. 2021). Thus, Ward had no duty to assist the 

police in gaining access to the contents of his cell phone and his exercise of his 

constitutional rights cannot be used against him as evidence of his guilt.

14 In recognition that citizens often will not assist police in gaining entry to their 

homes in the execution of a warrant, various jurisdictions have statutory warrant 

requirements which allow police to break into buildings to execute a warrant if they 

knock and are refused entry. The Fourth Amendment is not violated where exigent 

circumstances require breaking in to execute a warrant without knocking and allowing 

occupants to voluntarily grant entry. United States v. Ramirez, 523 U.S. 65 (1998). See 

Adcock v. Commonwealth, 967 S.W.2d 6, 11 (Ky. 1998) (holding ruse entry is 

permissible under the Fourth Amendment to execute a warrant).
36

We recognize there are many reasons why someone who has not

committed a crime would refuse to assist the police in its investigation in rifling 

through that person’s personal effects. Ward’s lifestyle choices and profession 

would certainly provide him with ample reasons to continue to safeguard his 

privacy to the extent possible. No inference of guilt can thereby be made from 

Ward’s failure to voluntarily assist the police in such endeavor. “In most 

circumstances silence is so ambiguous that it is of little probative force” and 

“also has a significant potential for prejudice.” United States v. Hale, 422 U.S. 

171, 176, 180 (1975). This makes Ward’s failure to help investigators 

irrelevant.

As the unknown contents of Ward’s cell phone are irrelevant, his use of a 

password and encryption on his phone (as well as his use of the Wickr app) is 

irrelevant, and his failure to help the police access the contents of his phone is 

irrelevant, no testimony regarding any of these issues should have been 

allowed, yet a substantial amount of testimony about this subject was elicited. 

This trial demonstrates why these issues should have never been delved into in 

the first place.

However, whether we consider the issue of the admission of this 

testimony under relevance or as under Ward’s preferred argument that it 

violated his right to silence, ultimately such testimony was harmless or not 

palpable error.

We are satisfied that as to Detective VonDerHaar’s testimony during the

Commonwealth’s case-in-chief, though irrelevant, was not a direct comment on
37

Ward’s right to silence. Detective VonDerHaar’s comment—that he could not 

access the contents of Ward’s cell phone due to encryption—may have left the

jury wondering why he could not access Ward’s cell phone but this was not

directly connected to what Ward did or did not say or do. There was no

intimation in the questions posed to the detective or in his answers that Ward

was asked for his password and refused to provide it.

While the question posed to Ward appears to have been inviting the jury 

to find guilt based on his failure to voluntarily cooperate with police and grant 

access to the contents of his cell phone, and we believe this to be improper 

because it was unknown whether there was anything incriminating to be 

accessed had his cell phone been unlocked, we do not believe this testimony 

realistically had any impact on the jury’s verdict. The error in permitting such 

testimony was harmless as to Detective VonDerHaars’s testimony and not 

palpable as to Ward’s testimony. Simply put, this was a minor error on a topic 

of limited significance. Therefore, there is no basis for reversal on this ground.

E. Did Prosecutorial Misconduct Deprive Ward of a Fair Trial—

 Unpreserved

Ward argues that prosecutorial misconduct occurred during the 

Commonwealth’s closing argument which deliberately misstated various facts 

in evidence: (1) Palmer’s testimony about discussing silencers with Ward; (2)

Weitz’s testimony about why DNA might not be on shell casings; (3) grossly 

overstating the certainty of Owens’s identification; and (4) stating a blood stain 

on the wall was Aiden’s fingerprint. Ward did not make any objection and 

requests palpable error review.
38

We recognize that it can be problematic to object during opening

statements and closing arguments. Such objections can be a tactical way to 

interrupt the speaker’s concentration, and in recognition of that danger some 

trial courts prohibit objections during closing arguments. Our precedent 

requires that if a trial court permits objections during argument, prompt 

objections must be made. Wallace v. Commonwealth, 478 S.W.3d 291, 297 (Ky. 

2015).

If a trial court does not allow objections during opening statements or 

closing arguments, any objections which are made immediately after a party’s 

opening statement (before any testimony) or closing argument (before the jury 

is excused) should be considered timely and preserved, as the error is properly 

brought thereby to the attention of the trial court as soon as may be permitted.

Under these circumstances, such objections are sufficiently contemporaneous

to fulfill the purposes of Kentucky Rules of Criminal Procedure (RCr) 9.22 and 

preserve such objections for review because at such a time curative

instructions can be rendered to the jury if needed. See Polk v. Greer, 222 

S.W.3d 263, 265 (Ky. App. 2007) (determining that an objection made to an 

opening statement after its conclusion and less than a minute after the claimed 

error occurred satisfied the “contemporaneous objection” requirement of 

Kentucky Rules of Civil Procedure (CR) 46, which is analogous to RCr 9.22, 

because it afforded the trial court an opportunity to cure the error in a timely 

fashion before the trial moved on from this phase); Weaver v. Commonwealth, 

955 S.W.2d 722, 728 (Ky. 1997) (explaining that the reasoning behind the 
39

contemporaneous objection requirement was to allow the trial court to have 

“the opportunity to consider whether an admonition would cure the error”).

However, the defense did not make an objection during the Commonwealth’s 

closing argument, or immediately thereafter its conclusion and, thus, we must 

conduct palpable error review.

Prosecutorial misconduct is “a prosecutor’s improper or illegal act 

involving an attempt to persuade the jury to wrongly convict a defendant or 

assess an unjustified punishment.” Noakes v. Commonwealth, 354 S.W.3d 116, 

121 (Ky. 2011) (quoting Black’s Law Dictionary (9th ed. 2009)) (brackets and 

ellipses omitted). While prosecutorial misconduct can occur through an 

improper closing argument, we must keep in mind that prosecutors have wide 

latitude in giving closing arguments and are free to draw any and all 

reasonable inferences from the evidence. Hall v. Commonwealth, 645 S.W.3d 

383, 398 (Ky. 2022).

“Any consideration on appeal of alleged prosecutorial misconduct must 

center on the overall fairness of the trial. In order to justify reversal, the 

misconduct of the prosecutor must be so serious as to render the entire trial 

fundamentally unfair.” Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 

2001) (internal citation omitted). “For unpreserved prosecutorial misconduct to 

be reversible, it must have been flagrant.” St. Clair v. Commonwealth, 451 

S.W.3d 597, 640 (Ky. 2014)

To determine whether improper conduct is flagrant and requires 

reversal, this Court weighs four factors: (1) whether the remarks 

tended to mislead the jury or to prejudice the accused; (2) whether 
40

they were isolated or extensive; (3) whether they were deliberately 

or accidentally placed before the jury; and (4) the strength of the 

evidence against the accused.

Barrett v. Commonwealth, 677 S.W.3d 326, 334 (Ky. 2023).

To properly evaluate Ward’s allegations of prosecutorial misconduct, we 

must put these four comments in the context of both closing arguments. It is 

important to note that these were lengthy and far-ranging closing arguments.

The defense closing argument was fifty-four minutes long and the 

Commonwealth’s closing argument was forty minutes long. These closing 

arguments covered many more topics than recited here and the complained of 

errors were a small percentage of the total arguments. 

1. Silencer

Ward argues that the Commonwealth changed Palmer’s testimony that 

she had talked about silencers with Ward and he stated, “they can easily be 

made from home” to “I know how to make a homemade silencer.”

In the defense closing argument, the defense specifically argued that 

there was no evidence that a silencer was made and instead neighbors perhaps 

simply did not want to come forward and get involved. The defense also argued 

that Palmer made up a lot of things.

The Commonwealth countered this evidence by referring to what Ward 

supposedly told Palmer twice, once in conjunction with why no one heard the 

gunshots and once in conjunction with why Palmer had reason to fear Ward:

Nine shots total. Nobody in that apartment complex heard one 

shot. You know why? Defense, defendant told you, just like he told 

[Palmer]. “I know how to make a homemade silencer.”

. . .
41

He told [Palmer], “I know how to make a homemade silencer.”

2. Gloves

Ward argues that the Commonwealth misrepresented Weitz’s testimony 

that DNA might not be on the shell casings for a variety of reasons including 

that the individual wore gloves by stating “Weitz . . . explained to you, it’s very 

simple why the defendant’s DNA would not be there. He wore gloves.” 

During the defense closing argument, the defense argued that the

murderer had left fingerprints on the glass door, and a bloody fingerprint on 

the wall after touching Aiden. The defense relied on this to establish that the 

killer did not wear gloves because the fingerprint did not belong to Ward, 

Sullivan or the police.

The Commonwealth thus needed to emphasize the possibility that the 

killer wore gloves and deemphasize the absence of such DNA evidence with the 

importance of the firearm toolmark identification evidence. The Commonwealth 

argued that the lack of DNA on the shell casings was easily explainable, first 

arguing you are “certainly not going to have DNA on the casings when you’re 

wearing gloves.” Then later, the Commonwealth connected this explanation to 

its expert: “Steven Weitz, the ATF lab, explained to you, it’s very simple why the 

defendant’s DNA would not be there, he wore gloves. One can conceal their

DNA. You know what they can’t conceal? The distinctive markings of their 

murder weapon.” Finally, the Commonwealth stated that Aiden’s DNA being on 

the shell casings made sense as DNA transfer occurred from the carpet where 
42

the shell casings fell but emphasized again “His [the murderer’s] DNA’s not 

there because he wore gloves.”

3. Firearms Toolmark Identification

Ward argues that the Commonwealth Attorney committed misconduct 

as, despite accepting the limitation that Owens could not state her opinion to a 

degree of statistical or scientific certainty or phrase her opinion “to the 

exclusion of other firearms,” argued about the firearm toolmark identification of 

the shell casings “it’s credible, it’s irrefutable evidence. It is beyond a 

reasonable doubt evidence.” Ward argues that the prosecutor’s arguments 

about the strength of such evidence constituted a gross overstatement. 

The defense vigorously argued in its closing argument its theory that 

confirmation bias prevented the police from investigating other possible 

theories of how the murders may have occurred, including that Novak may 

have been the murderer as spurned on by jealousy that Sullivan was now 

involved with Kramer or that the murders could have been the result of a drug 

deal gone bad. The defense explained that the original investigation into Ward 

started with Kramer’s text about Ward being at the Starbucks where she 

worked, and the police identifying the wrong person on the Starbucks video as 

being Ward, and once the police identified Ward as a stalker, they saw 

everything else through that lens and were eager to confirm this supposition

with each piece of evidence, including Owens’s firearm toolmark identification 

to support this specious theory.
43

Specifically, as to the firearm toolmark identification evidence regarding 

the shell casings, the defense argued this evidence was not credible, not 

competent, was not a science, was a subjective opinion with a high degree of 

error and was nothing like DNA testing which was the gold standard and 

definitive in identifying and excluding people. The defense explained that

without a murder weapon, there was no firearm to test as a control and that 

Owens had not tested the available .22 firearms used at the farm to see if they 

produced matching shell casings. The defense showed pictures of the shell 

casings Owens compared and expressed an opinion that the jury could see that 

the shape of the fire rim marks was different and the ejector marks were 

different between these samples, which either meant that different firearms

were used or that the same firearm rendered different results, either of which 

was problematic for identification. The defense reminded the jury that the shell 

casings located at the farm had been exposed to the elements and a 

lawnmower over the nine months they remained there. The defense emphasized 

that Owens did not even know what type of firearm was used to produce the 

shell casings, having testified that it could have been either a .22 pistol or a .22 

rifle, and that she could not identify what brand of firearm was used. 

To counter such argument, the Commonwealth displayed photos of four 

shell casings on a screen during its closing argument for approximately

seventeen minutes while repeatedly returning to the importance of this 

evidence. The Commonwealth argued there could be no confirmation bias 

because inanimate objects could not be biased. The Commonwealth stated that 
44

firearm toolmark evidence was sound physical evidence that had been accepted 

for one hundred years and confirmed that Ward killed Kramer and Aiden. The 

Commonwealth argued that the shell casings and the markings on them spoke 

for Kramer and identified the murderer as Ward. Later, the Commonwealth 

returned to the importance of this evidence and stated: “100 years this has 

been around for forensic examinations. It’s credible, it’s irrefutable evidence. It 

is beyond a reasonable doubt evidence.” The Commonwealth followed up by 

explaining again that after a microscopic examination Owens had identified 

both sets of shell casings as being fired from the same firearm. Finally, as to 

Aiden’s murder, the Commonwealth explained that the toolmarks on the shell 

casings told Aiden’s story, how he died and told the jury that Ward was his 

killer.

4. Bloody Fingerprint

Ward argued that despite the crime scene photos showing that Aiden had

no blood on his hands and testimony from Detective Cochran that Aiden bled 

from the position where he was located, the Commonwealth Attorney 

committed prosecutorial misconduct by arguing in her closing argument that a 

blood stain on the wall was “Aiden’s ridge print. That’s him before he is falling 

to the ground.” Ward argues telling the jury Aiden was alive and walking 

around while suffering the pain of being shot inflamed the jury.

As discussed infra, the defense argued that the bloody fingerprint 

belonged to the real killer who was not wearing gloves. In this context, the 

Commonwealth was left having to explain that someone else must have made 
45

this fingerprint, since its theory was that Ward had not left any fingerprints 

because he was wearing gloves (this also tied in with its argument that Ward 

practiced for the murder by target shooting at the farm while wearing gloves). 

The defense argument thus spurred the Commonwealth to find someone else 

who logically could have left the fingerprint.

This is demonstrated by how the Commonwealth addressed this 

argument:

The bloodstain on the wall, defense brought that up, you all have 

the photo of it, it’s tiny. You heard from KSP lab it was Aiden’s 

blood. I submit to you, ladies and gentlemen, Aiden wasn’t just 

shot once and died. He was shot three times. That’s Aiden’s ridge 

print. That’s him before he’s falling to the ground.

5. Do the Erroneous Assertions as a Whole, Qualify as Flagrant 

 Misconduct which would Require Reversal?

When considered collectively, these remarks had a low potential to 

mislead the jury and prejudice the accused as they were relatively isolated 

(both within the Commonwealth’s closing argument as a whole and even 

regarding most of the topics being canvased) and appear to have been a 

combination of deliberate and accidental remarks. The statements which were 

couched as witness statements rather than inferences regarding the silencer 

and the gloves, were mildly misleading, isolated, and likely accidentally placed 

before the jury with poor wording; overall, they were harmless considering the 

evidence.

The statement about the strength of the firearm toolmark identification 

testimony and the statement about Aiden’s ridge print were misleading and 

deliberate. However, given the vigorous and robust closing argument by the 
46 

defense, that these statements were made in the context of countering such 

arguments (thus showing they were not uncontested), and the overall length of 

the closing arguments which contained ample support for a conviction, they 

were unlikely to prejudice the defense. 

Having considered these factors, overall they weigh against the conduct 

being flagrant. On balance, we do not believe these prosecutorial errors require 

reversal as they were not so “egregious as to undermine the essential fairness 

of Ward’s trial.” Barrett, 677 S.W.3d at 335. 

F. Should Ward’s Motion for a Directed Verdict have been Granted?— 

 Preserved 

 Ward moved for a directed verdict in accordance with CR 50.01 on the 

basis that there was simply insufficient evidence to convict him. 

 In considering whether a motion for directed verdict should be granted, 

“[t]he trial court must draw all fair and reasonable inferences from the evidence 

in favor of the party opposing the motion, and a directed verdict should not be 

given unless the evidence is insufficient to sustain a conviction.” 

Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). 

If the 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 purpose 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. 

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). 

 “When the denial of a properly preserved directed verdict motion is 

challenged on appeal, the standard of review is . . . whether, viewing the 
47

evidence in the light most favorable to the Commonwealth, any rational juror 

could have found all the elements of the crime.” Quisenberry v. Commonwealth, 

336 S.W.3d 19, 35 (Ky. 2011). 

Given the testimony by witnesses that Ward was angry at Kramer and 

made threatening statements about what he wanted to do to her, and the rest 

of the evidence which was properly admitted at trial, the Commonwealth could 

establish motive, opportunity and connect Ward to the crime. Ward’s 

arguments are in the nature of a closing argument in which he adopts the most 

favorable interpretation of the evidence, rather than considering the evidence in 

the light most favorable to the Commonwealth. Accordingly, it is appropriate to 

affirm the denial of Ward’s motions for directed verdict.

III. CONCLUSION

While harmless errors did occur in Ward’s trial, he has failed to establish 

any reversible errors. Our consideration of the theory, research, and practice 

behind firearm toolmark analysis has left us with many questions and few 

answers as to how such evidence should be treated by our trial courts. 

Certainly, it gives us pause that such experts reach definitive conclusions 

based on subjective visual inspections, given the limitations of current research 

to establish the accuracy of such conclusions. However, the defense motion in 

limine was inadequate to preserve this claimed error; preservation required a 

proper request for a Daubert hearing and expert testimony to determine any 

limitations on the admission of such evidence. Under these circumstances, it is 

simply not appropriate for us to rule that the Boone Circuit Court abused its 
48

discretion where it appropriately followed our established precedent as to what 

could be properly admitted in declining to grant the motion in limine beyond 

the Commonwealth’s prior concessions. Accordingly, we affirm Ward’s 

convictions and sentence.

All sitting. VanMeter, C.J.; Conley, Lambert, and Thompson, JJ., concur. 

Bisig, Keller, Nickell, JJ., concur in result only. 

COUNSEL FOR APPELLANT:

Shannon Dupree

Kayley V. Barnes

Assistant Public Advocates

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Bryan D. Morrow

Assistant Solicitor General

Todd Ferguson

Assistant Attorney General