RENDERED: MARCH 14, 2024 

TO BE PUBLISHED 

Supreme Court of Kentucky

2023-SC-0073-MR 

LANCE BOWMAN APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT 

V. HONORABLE ERIC J. HANER, JUDGE 

NOS. 19-CR-003472 & 22-CR-002224 

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT 

AFFIRMING 

 Lance Bowman was convicted of murder, tampering with physical 

evidence, and possession of a handgun by a convicted felon in relation to the 

shooting death of James Mentee, Jr. He was further found to be a first-degree 

persistent felony offender (PFO 1st) and was sentenced to fifty years’ 

imprisonment. He now appeals his convictions and sentence as a matter of 

right. Ky. Const. § 110. After review, we affirm. 

I. FACTS AND PROCEDURAL BACKGROUND

 On December 19, 2019, at 11:38 pm Bowman walked into the front door 

of Retta’s Lounge (Retta’s), located on South 7th Street in Louisville. Retta’s 

was described as a hookah lounge, a bar, and a restaurant, and was owned by 

Mentee. Of particular import, Retta’s had interior and exterior security 
2

cameras that captured the events leading up to and immediately following 

Mentee’s death. One of the exterior cameras covered the front door and the 

concrete “porch” area just outside the front door, and another exterior camera 

covered a wide angle of the parking lot and a small sliver of the outer portion of 

the porch. Though the video footage from the cameras is high quality, it did 

not capture audio. 

Roughly five minutes after Bowman entered Retta’s, he was approached 

by Arthur Simpson, one of the security guards for the establishment. Simpson 

walked Bowman back outside onto the front porch area. When Bowman and 

Simpson first exited onto the porch, they appeared to have a somewhat tense 

conversation, but it never became physical. We note here that the footage 

clearly showed a pistol sticking out of Simpson’s waistband. Soon after,

Dwayne Hill got out of his car, walked onto the porch, and began talking to 

Bowman and Simpson. Again, it appears from the footage that Bowman was

upset about something, but the three men seemingly talked calmly; they smiled

and laughed and at one point Bowman even patted Simpson on his stomach in 

a playful way. 

A few minutes later, a woman came out of the front door and sat on the 

open tailgate of a truck parked just in front of the porch. She and Bowman 

talked normally for a while, until the woman said something that apparently 

upset Bowman as she was walking back toward the front door. He got in her 

face in an aggressive manner, and Simpson put his hand on Bowman’s 

shoulder to nudge him back. The woman then went back inside, and Bowman, 
3

Simpson, and Hill continued to stand around and talk. Shortly thereafter,

Mentee came outside. From the time Simpson escorted Bowman out of Retta’s 

to the time Mentee came outside was approximately ten minutes. 

When Mentee came outside, he shut the tailgate of the truck on which 

the unidentified woman had previously been sitting. He then walked back 

toward the front door and opened it. But before he could enter, Bowman said

something to him, and he stopped. Mentee then said something in return that

Bowman did not like based on his facial expression. Mentee remained

standing in front of the door while Bowman then stepped toward him until the 

men were nearly chest to chest. The men then began talking while Simpson, 

Hill, and a third unidentified man stood close by. 

At that point Mentee was saying something to Bowman, and Bowman

appeared agitated. Simpson then stepped between Bowman and Mentee to get 

Bowman to back away. Simpson and the unidentified man then stood between

Bowman and Mentee while Bowman continued saying something and pointing

his finger at Mentee. All the while Mentee continued to stand in the same spot 

and respond; often his hands were palms up in front of him. Hill then moved 

to also stand near Bowman and over the next minute or so Bowman lightly 

jostled back and forth with Simpson, Hill, and the unidentified man. Bowman

was very upset by this point, and he gestured his pistol over Simpson’s 

shoulder in Mentee’s direction at least once. 

Bowman then walked away towards the parking lot and completely out of 

frame for a few seconds before charging back into frame with his pistol pointed 
4

at Mentee’s head. Mentee grabbed the gun and pointed it down, the men 

began to struggle over it, and one shot was fired near Mentee’s head while

Bowman was still holding the gun, but it missed. The men continued to 

grapple over the gun and went completely out of the camera’s view. Mentee 

was soon after shot in his upper left chest, but the shooting itself was not 

captured by any of the security cameras. The bullet that struck Mentee

traveled left to right, downward, and slightly back, and was consistent with 

being a .45 caliber G2 Research “R.I.P.” (radically invasive projectile) round. 

This is a unique bullet that has a solid copper base and a triangular shaped tip 

made of trocars that are designed to break off from the base and spread upon 

impact. No weapon of any kind was found with Mentee’s body and a 

subsequent toxicology screen determined he had no drugs of abuse or alcohol 

in his system. Forensic testing of Bowman’s gun concluded that the DNA of 

both Mentee and Bowman was on the trigger, grip, slide, sight, and barrel of 

the gun. 

After Mentee was shot, the security camera overlooking the parking lot 

captured Bowman get up from the scuffle. It appears he then struck Mentee’s 

body with his gun and walked away, gun in hand. Simpson then fired several

.9mm rounds in Bowman’s direction, and one struck his upper foot/ankle.1 

Bowman walked south on 7th Street for a short distance before crossing the 

1 Bowman claimed Simpson shot him while he was struggling over the gun with 

Mentee. But, while the footage does show Simpson point his gun in the direction of 

the struggle, it is unclear whether he fired it at that time. But the footage clearly 

shows him fire several rounds at Bowman as he walked away. 
5

street onto Phyllis Avenue. While behind a residence on Phyllis Avenue he 

placed his gun between the home’s HVAC unit and a stack of boards. Bowman

then hid in the home’s backyard until several law enforcement officers found

him after responding to Retta’s and following the blood trail left by the gunshot 

wound to his foot. After he was handcuffed and sent to the hospital, he 

was questioned by two different officers at different times. He told the first 

officer that the shooting was in self-defense, but two hours later he told a

different officer that he was not at Retta’s that night, that he did not have a 

gun, and that he knew nothing about the shooting. 

At trial, Bowman testified in his own defense as follows. Bowman was 

born and raised in Louisville’s west end, which in general is not a safe place. 

That is why he continued to carry a gun for self-protection notwithstanding his 

status as a convicted felon. From June to September 2019, he worked at 

Retta’s as a security guard, but Mentee was not his boss. Rather, he worked 

for a man he called “Brooklyn” who would send his employees, including 

Bowman and Simpson, to different locations as needed. Bowman was fired 

from that position in September 2019 after an incident at Retta’s during which 

he was jumped by two men. That night, Mentee asked Bowman to tell the two 

men to leave because of their disruptive behavior, and he did so. Rather than 

leave, the two men went to speak to Mentee; a conversation Bowman said he 

observed. Bowman claimed he heard Mentee say “yeah, go ahead, I don’t care” 

to the men, and he was jumped by them shortly thereafter. Bowman did not 

know who the men were and never saw them again. 
6

Two to three weeks after that incident, Brooklyn asked Bowman to call 

Mentee because Mentee wanted him to be a security guard at Retta’s again. 

Bowman spoke to Mentee, and Bowman believed they were back on good terms 

based on that conversation.

On the night of the shooting, Bowman said Simpson escorted him to the 

porch area because Bowman had a gun. Ordinarily, a security guard would 

have checked him before he entered, but there was no one at the front door 

when he entered Retta’s. He claimed he was not asked to leave the premises;

he just could not be inside with a firearm. Bowman further claimed that he did 

not trust Simpson or Hill, he was not friends with them, and he believed 

Simpson was dangerous. When they first exited Retta’s, he and Simpson were 

discussing an incident that occurred the last time Bowman was at Retta’s 

during which Bowman prevented Simpson from being jumped. It is unclear 

exactly when that incident occurred, but it was after Bowman had been 

jumped at Retta’s. Regarding Bowman getting in the unidentified woman’s face

on the night of the shooting, he claimed he did so because she told him she 

heard everyone from Louisville were “rats.” Bowman testified the worst thing 

you can call someone in the west end is a “rat.”

Bowman further explained that when Mentee came outside Bowman 

asked him if they “were cool” and Mentee said no because Bowman was 

disrespectful. Bowman said Mentee was referring to the night he prevented 

Simpson from being jumped. Bowman felt as though Mentee was “picking at 

him.” After that, Bowman claimed that Simpson, Hill, and the third 
7

unidentified male started to pull him away from Mentee and began threatening 

him. One of them told him, “You’re going to make me lay you out out here” 

because Bowman was “acting tough.” Mentee was also making threats and

told Bowman he “would have the whole south side at [Bowman’s] momma’s 

house.” Bowman claimed he was holding his gun in his hand because the

three men kept trying to take it from him, but said he never pulled it out of his 

waistband. 

Bowman then claimed Mentee told him he was the reason Bowman had 

been jumped previously and that if he ever came back to Retta’s, it would 

happen again or worse. That was the point at which Bowman turned and 

began to walk away until he heard Mentee again say that he would have the 

whole south side at his mother’s house and heard Mentee shout “get rid of 

him.” At that point he got out his gun and charged Mentee because he was 

scared and wanted to ensure no one moved or did anything to hurt him. 

Bowman then claimed that after the shot was fired that missed Mentee, they 

continued to struggle over the gun and Bowman tripped. Bowman claimed 

that when he threw his hands out to catch himself, Mentee grabbed the gun 

out of Bowman’s hand, and it went off; Bowman did not pull the trigger. 

Bowman said he then pushed Mentee’s body off him, picked up his gun, and 

walked off as Simpson fired several shots at him. He maintained that Simpson 

came after him in a vehicle and that is why he hid behind the residence on 

Phyllis Avenue. 
8

During cross-examination, Bowman acknowledged that Mentee never 

attempted to hit him or push him, and that he never saw a weapon on Mentee’s 

person. He agreed that he was afraid of Mentee based solely on his verbal 

threats. 

Based on the foregoing evidence, the jury was instructed on wanton and 

intentional murder, second-degree manslaughter, reckless homicide, and 

tampering with physical evidence. Regarding the murder, manslaughter, and

reckless homicide instructions, the jury was further provided with both a selfprotection instruction and an initial aggressor qualification to that instruction. 

The jury found Bowman to be guilty of murder and tampering with physical 

evidence. Subsequently, it found him to be guilty of possession of a handgun 

by a convicted felon and PFO 1st. 

Additional facts are discussed below as necessary.

II. ANALYSIS

Bowman now raises several alleged issues before this Court. We address 

each in turn. 

A. The trial court did not err by denying Bowman’s motion to suppress.

Bowman first asserts that the trial court erred by denying his motion to 

suppress all statements he made to law enforcement while at the hospital on 

the night of the shooting in violation of Miranda v. Arizona, 384 U.S. 436 

(1966). For context, we reiterate that Bowman was taken directly from the 

home on Phyllis Avenue, where he was found and handcuffed by several police 

officers at gunpoint, to the hospital. It was undisputed that at least one police 
9

officer remained with him at all times from Phyllis Avenue to the hospital and 

that he was always supervised by at least one officer thereafter. The 

questioning at issue occurred at two different times by two different officers, 

Detective Preston Eisenback (Det. Eisenback) and Detective Rickey Guffey (Det. 

Guffey), respectively, and was recorded on the officers’ body cameras. 

Det. Eisenback’s body camera footage begins at 12:36 am. At that time, 

Bowman had just arrived at the emergency room, so the scene was somewhat 

chaotic. There were anywhere from five to ten people, most appear to be

nurses, in the treatment area and all were either actively treating Bowman or 

standing nearby. Det. Eisenback waited several minutes for the commotion to 

die down and then asked a nurse if he could ask Bowman some questions. 

They then had the following exchange:

Eisenback: Hey man, what happened? I’m a detective with 

Shively, I’m trying to figure out what happened. 

Bowman: Man I was just trying to defend myself.

Eisenback: What’s that? 

Bowman: I was just trying to defend myself. 

Eisenback: Defend yourself? From what?

Bowman: Motherfuckers on that bullshit. 

Eisenback: Who’s on the bullshit? Who was out there?

Bowman: Whoever was on the bullshit like I don’t know bruh. 

Eisenback: Well, I don’t know either that’s why I’m asking I’m 

trying to find out what’s going on.

Bowman: They found me shot but I don’t know what’s going on 

bruh. 
10

Eisenback: You don’t know who shot you?

Bowman: I’m just sitting here trying to get away from shit bruh. 

Eisenback: You don’t know who shot you?

Bowman: No I don’t. 

Eisenback: Do you have a weapon?

Bowman: No, did you find me with a weapon? Did they find me 

with a weapon?

Eisenback: I don’t know, I’m just asking you that’s all just relax. 

Bowman: Did you find one on me?

Eisenback: I’m just asking you, just relax. I wasn’t there you’ve 

got to fill in the details. If you’re shot, I want to try to help you, I 

want to try to figure out what happened. 

Bowman: Bruh listen I don’t know what nobody was on bruh. All I 

know is I’m in pain. 

Eisenback: Where were you at?

Bowman: That’s all I know. 

Eisenback: Where were you at?

Bowman: That’s all I know. 

Eisenback: You don’t know where you were at when it happened?

Bowman: I’m in pain. 

Eisenback: What’s your name man?

At that point, Bowman stopped answering Det. Eisenback, and he walked away 

from his gurney. The foregoing excerpt was the only portion of Det. 

Eisenback’s footage that was played during Bowman’s trial. 
11

At 1:04 am, a nurse rolled Bowman’s gurney out of the treatment area 

and into an open area next to a row of private rooms. It appears he and some 

other patients were placed in that area because there were not enough private 

rooms. At 1:28 am, Bowman asked Det. Eisenback if he could go home, and 

he responded that he could not. When Bowman asked why, Det. Eisenback 

responded that he could lose his leg and that they had an investigation going 

on. 

Det. Guffey, the lead detective on the case, arrived at 2:10 am. Around 

2:19 am, Det. Guffey attempted to get Bowman to submit to a gunshot residue

test several times, but Bowman refused. They then had the following 

exchange2:

Guffey: I just want to make sure I’m recording this so that down 

the road I can show that I asked you several times to cooperate 

with swabs on your hands, I just want to make sure. 

Bowman: What do you need to swab my hands for?

Guffey: For gunshot residue. 

Bowman: This what I’m sayin’ bruh, I’m shot. 

Guffey: I understand but do you want to cooperate and let her 

swab your hands real quick so we can get her out of here and then 

you and I will talk?

Bowman: What do we need to talk about?

Guffey: We’ll talk about—

Bowman: Nah, why you can’t talk to me right now?

2 This portion of the footage was not played for the jury but was relevant to the 

trial court’s ruling on Bowman’s motion to suppress. 
12

Det. Guffey then requested that Bowman submit to the testing one final time, 

and he refused. Shortly thereafter, a nurse came to give Bowman some pain 

medication, and then Bowman and Guffey had the following exchange:

Bowman: And when I take this don’t ask me no questions bro 

leave me the fuck alone. If anything like where’s my family bro like 

I ain’t had contact with nobody bruh.3 

Guffey: Once [the nurse] gets done I’ll talk to you. 

Bowman: Don’t try to talk to me when he get done. I don’t got 

nothin’ to talk about.

Guffey: Okay, let me tell you why I’m here. There’s a guy that’s 

been killed at a bar that’s on 7th Street, the guy—

Bowman: And I’m shot.

Guffey: Okay, listen, don’t say anything just let me talk, alright? I 

have you on video with a gun shooting at this individual okay? So,

I’m going to read you your rights, okay? So, before you say 

anything let me read you your rights and then we’ll talk okay? You 

have the right to remain silent, do you understand that?4

Bowman: For what though?

Guffey: Do you understand you may remain silent? I’m just 

asking you yes or no? I’m reading you your rights.

Bowman: But I’m shot. 

Guffey: I understand. Do you understand you have the right to 

remain silent?

Bowman: That’s bullshit bro. 

3 We note that after Det. Eisenback’s first round of questions excerpted above, 

he asked Bowman if there was anyone he could contact for him, but Bowman would 

not give him any contact information to do so. 

4 The portion of Det. Guffey’s body camera footage that was played for the jury 

began with here with his statement, “You have the right to remain silent, do you 

understand that?” 
13

Guffey: Anything you do say may be used against you in court and 

any other proceedings do you understand that?

Bowman: (does not answer)

Guffey: You have the right to consult an attorney before you make 

a statement or answer any questions, do you understand that?

Bowman: (does not answer)

Guffey: You may have your attorney—

Bowman: My thing is, is how—

Guffey: Can I read these to you? I really want to read these to you 

before you say anything okay? Because I want to make sure you 

know your rights before you start saying stuff okay? Can I finish 

these—

Bowman: But how are you just going to say I did something when 

I’m the one who’s sitting here shot?

Guffey: You may have an attorney present during any questioning, 

do you understand that?

Bowman: (does not answer)

Guffey: You may request the court to appoint an attorney for you if 

you cannot afford to hire one, do you understand that?

Bowman: (does not answer)

Guffey: You may stop the questioning at any time by refusing to 

answer any further questions or by requesting to consult with an 

attorney. Do you understand your rights? Mr. Bowman? Do you 

understand them?

Bowman: (does not answer)

Det. Guffey finished reading Bowman his rights at approximately 2:25 am. He 

then asked if Bowman wanted to talk about what happened because there was 

security footage of Bowman shooting someone at Retta’s. Bowman responded 

that he did not do it. Det. Guffey then said he knew Bowman told another 
14

officer that it was self-defense, and that usually people that claim self-defense 

are cooperative and want to discuss what occurred. Bowman again said that 

he is the one who is shot, but he did not know who shot him. He also said that 

he was not at Retta’s, that he was not fighting with anyone, that he does not 

know anything about a gun, and that he does not have “beef” with anyone. 

That was the substance of the clip that was played at trial, which ended at 2:58 

am. At no point during this portion of the questioning, after Bowman is read 

his Miranda warnings, does he tell Det. Guffey he does not want to speak to 

him. 

Before the trial court, Bowman’s motion to suppress requested that all

the statements he made to Dets. Eisenback and Guffey while at the hospital be 

suppressed. The Commonwealth conceded that the statements Bowman made 

after 1:28 am, when Det. Eisenback told him he could not go home, until 

approximately 2:25 am when Det. Guffey mirandized him should be 

suppressed. The trial court agreed with the Commonwealth’s concession and 

found that any statements made by Bowman between 1:28 am and 2:25 am 

were inadmissible at trial. 

However, the court went on to find that the statements Bowman made to 

Det. Eisenback prior to 1:28 am were admissible because he was not in 

custody. The court found that a reasonable person in his position would have 

believed he was free to leave, or, if he could not leave because of his medical 

condition, that he was free to stop answering questions, citing Commonwealth 
15

v. Lucas, 195 S.W.3d 403 (Ky. 2006), and Peacher v. Commonwealth, 391 

S.W.3d 821 (Ky. 2013). The court reasoned that 

[t]he body camera footage shows Detective Eisenback questioned 

Mr. Bowman for a total of 11 minutes and 29 seconds. Detective 

Eisenback was calm and asked general questions about what 

happened during the shooting, such as where Mr. Bowman was 

shot, who had shot him, and how he had been shot, without 

commanding him to answer. Detective Eisenback’s line of 

questioning does not suggest that he considered Mr. Bowman to be 

anything other than a victim or a witness in connection with the 

shooting. Nor did Detective Eisenback exclude anyone from 

accessing the area where Mr. Bowman was recovering, preclude 

him from receiving medical treatment, or, prior to approximately 

1:28 am, tell him that he could not leave. 

The court further found that Bowman’s statements to Det. Guffey made after 

2:25 am were admissible because Bowman did not unequivocally invoke his 

right to silence. It found:

With respect to Mr. Bowman’s statements after 2:25 a.m., the body 

camera footage shows that, before Detective Guffey began his 

questioning, Mr. Bowman somewhat ambiguously told him at 

various points that he both would and would not talk to him. At 

one point, Mr. Bowman even asked Detective Guffey, “why can’t we 

talk right now?” Detective Guffey then repeatedly told Mr. 

Bowman not to talk to him until after he had read his Miranda

rights to him. Contrary to Mr. Bowman’s assertions, the Court 

cannot interpret his statements to Detective Guffey before he read 

his Miranda rights to him to be an unequivocal and unambiguous 

invocation of his right to remain silent that would have required 

Detective Guffey to cease all efforts to question him. 

(Internal citations to the record omitted). 

Bowman argues to this Court that the trial court erred in denying his 

motion to suppress because: (1) Det. Eisenback subjected him to a custodial 

interrogation without first advising him of his Miranda rights; and (2) Det. 

Guffey ignored his unequivocal invocation of his right to remain silent. This 
16

Court’s review of a trial court’s ruling on a motion to suppress is two pronged. 

See, e.g., Payton v. Commonwealth, 327 S.W.3d 468, 471–72 (Ky. 2010). First, 

we determine whether the trial court’s findings of fact are supported by 

substantial evidence. Id. at 471. “Substantial evidence means evidence of 

substance and relevant consequence having the fitness to induce conviction in 

the minds of reasonable men.” See, e.g., Smyzer v. B.F. Goodrich Chem. Co., 

474 S.W.2d 367, 369 (Ky. 1971). If the trial court’s findings are

supported by substantial evidence, they are considered conclusive. Payton, 

327 S.W.3d at 471. “[W]e must then conduct a de novo review of the trial 

court's application of the law to those facts to determine whether its decision is 

correct as a matter of law.” Id. at 471-72 (quoting Commonwealth v. Neal, 84 

S.W.3d 920, 923 (Ky. App. 2002)). “In particular, ‘[t]he question of “custody” is 

reviewed de novo.’” Peacher, 391 S.W.3d at 846 (quoting Alkabala-Sanchez v. 

Commonwealth 255 S.W.3d 916-920(Ky. 2008)).

1) Bowman was not in custody for Miranda purposes when Det. 

Eisenback questioned him. 

A fundamental tenet of our jurisprudence is that law enforcement must 

advise a suspect of their rights to remain silent and to the assistance of 

counsel prior to subjecting him or her to a custodial investigation. Miranda, 

384 U.S. at 471-72. “Custody” is a term of art that was succinctly explained by 

this Court in Peacher:

[“custody”] specifies circumstances that are thought generally to 

present a serious danger of coercion. In determining whether a 

person is in custody in this sense, the initial step is to ascertain 

whether, in light of the objective circumstances of the
17

interrogation, a reasonable person would have felt he or she was 

not at liberty to terminate the interrogation and leave. And in 

order to determine how a suspect would have gauged his freedom 

of movement, courts must examine all of the circumstances 

surrounding the interrogation.

Relevant circumstances include the place, time, and duration of 

the questioning; the questioning's tenor, whether cordial and 

neutral or harsh and accusatory; the individual's statements; the 

presence or absence of physical restraints; whether there was a 

threatening presence of several officers and a display of weapons or 

physical force; and the extent to which the questioner sought the 

individual's cooperation or otherwise informed him that he was not 

under arrest and was free to leave. 

391 S.W.3d at 846 (cleaned up) (internal citations omitted). 

With regard to police questioning that occurs while a suspect is a patient 

at a hospital, this Court has previously stated, albeit in unpublished opinions,

that “the restraint giving rise to ‘custody’ must be restraint instigated by the 

police, and for that reason the majority rule is that confinement to a hospital 

bed does not, by itself, amount to ‘custody’ for Miranda purposes.” Griggs v. 

Commonwealth, 2006-SC-000846-MR, 2008 WL 1851080, at *5 (Ky. Apr. 24, 

2008) (citing Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (Ark. 1997); DeJesus 

v. State, 655 A.2d 1180 (Del.1995); State v. Tucker, 131 N.H. 526, 557 A.2d 

270 (N.H. 1989); People v. Milhollin, 751 P.2d 43 (Colo. 1988)). See also, Hardin 

v. Commonwealth, 2015-SC-000614-MR, 2016 WL 7665872, at *2 (Ky. Dec. 15, 

2016) (quoting Griggs, 2008 WL 1851080, at *6).5 “Rather, hospital 

5 Although unpublished, the conclusion from Griggs and Hardin is consistent 

with published case law that provides, for example, that being questioned in a police 

station is not custody per se, Peacher, 391 S.W.3d at 848, nor is being questioned in a 

police vehicle, Simpson v. Commonwealth, 653 S.W.3d 855, 862 (Ky. 2022). Moreover, 

in Haney v. Commonwealth, 653 S.W.3d 559, 565-66 (Ky. 2022), we held that a 
18

questioning, like questioning elsewhere, is not custodial unless the 

circumstances would lead a reasonable person to believe that were he capable 

of leaving the hospital, the police would not allow him to do so.” Griggs, 2008 

WL 1851080, at *5. 

Based on the totality of the circumstances surrounding Det. Eisenback’s 

questioning of Bowman, we agree with the trial court’s determination that he 

was not in custody for Miranda purposes when he was questioned by Det. 

Eisenback. The questioning, which was relatively short, took place in a 

bustling emergency room treatment area while several nurses administered 

various means of medical treatment. At no point did Det. Eisenback attempt to

clear the room or stop treatment so that he could question Bowman and, 

indeed, he waited until there was a lull in treatment before he began asking 

questions. The questions themselves were asked in a professional and nonaccusatory manner and were predominantly concerned with trying to figure out 

what occurred (What happened? Who shot you? Where were you? Did you 

have a weapon? What is your name?). And although Bowman’s answers were 

evasive, Det. Eisenback never commanded him to answer. Moreover, when 

Bowman stopped answering his questions, Det. Eisenback ceased asking them. 

Bowman was not handcuffed or otherwise restrained and, at that time, was not 

told that he was under arrest or that he could not leave. 

suspect was not in custody for Miranda purposes when she was questioned by an 

officer in her hospital room. 
19

Bowman points to several factors to support his argument that a 

reasonable person in his position would have believed he was in custody when 

questioned by Det. Eisenback. While we agree with his assertion that the fact 

that Det. Eisenback did not tell him he was free to leave or stop questioning is 

a factor that cuts in favor of finding he was in custody, custody is based on the 

totality of the circumstances and the remainder of his arguments are nonstarters. First, Bowman contends that he was handcuffed and deemed a 

suspect when police first located him on Phyllis Avenue; that he was escorted 

by police to the hospital; that Det. Eisenback initiated contact with him 

because he matched the description of the suspect in Mentee’s shooting; and 

that Det. Eisenback collected his clothing from him while in the emergency 

room. But, “[w]hat the police may know or suspect about the interviewee or 

even the fact that they intend to arrest him is irrelevant to [a custody]

determination, unless they communicate their knowledge or intent in such a

way that a reasonable person would believe himself effectively arrested.” 

Peacher, 391 S.W.3d at 848 (citing Yarborough v. Alvarado, 541 U.S. 652 

(2004)). As noted, nothing about Det. Eisenback’s interaction with Bowman in 

the emergency room would have communicated such an intent to a reasonable 

person. 

Bowman also argues that the questions posed to him by Det. Eisenback 

were attempts to get him to make incriminating statements. But even 

assuming arguendo we agree with his assertion that Det. Eisenback 
20

interrogated him,6 “Miranda does not forbid non-custodial interrogation.” 

Peacher, 391 S.W.3d at 847 (citing Stansbury v. California, 511 U.S. 318 

(1994)). In other words, Det. Eisenback was free to ask Bowman potentially 

incriminating questions because Bowman was not in custody. 

2) Det. Guffey did not ignore an unambiguous invocation of Bowman’s 

right to remain silent. 

Bowman next alleges that Det. Guffey ignored his unequivocal invocation 

of his right to remain silent. A suspect who wishes to invoke his or her right to 

remain silent under Miranda must do so unambiguously. Bartley v. 

Commonwealth, 445 S.W.3d 1, 5 (Ky. 2014) (citing Berghuis v. Thompkins, 560 

U.S. 370, 381 (2010)). “Once warnings have been given, the subsequent 

procedure is clear. If the individual indicates in any manner, at any time prior

to or during questioning, that he wishes to remain silent, the interrogation 

must cease.” Miranda, 384 U.S. at 473–74. 

Here, Bowman points to the following statements to support his claim 

that Det. Guffey did not honor his invocation of his right to remain silent: 

“Don’t ask me no questions,” “leave me the fuck alone,” “don’t trying to talk to 

me,” and “I don’t have nothing to talk about.” While there is no doubt that 

these statements occurred after he was in custody for Miranda purposes, based 

6 “The term [interrogation] under Miranda refers not only to express 

questioning, but also to any words or actions on the part of the police (other than 

those normally attendant to arrest and custody) that the police should know are 

reasonably likely to elicit an incriminating response from the suspect.” Dunlap v. 

Commonwealth, 435 S.W.3d 537, 598 (Ky. 2013), abrogated on other grounds by 

Abbott, Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021).
21

on the excerpt above, each of them occurred before he was mirandized and 

before Det. Guffey began his formal interrogation. 

This Court has previously held that “the Fifth Amendment rights 

protected by Miranda attach only after a defendant is taken into custody and 

subjected to interrogation. [And] [a]ny attempt to invoke those rights prior to 

custodial interrogation is premature and ineffective.” Wilson v. Commonwealth, 

199 S.W.3d 175, 179 (Ky. 2006). Stated differently, “[i]n order for Miranda 

rights to be invoked, there must be (1) custody and (2) interrogation.” United 

States v. Vega-Figueroa, 234 F.3d 744, 749 (1st Cir. 2000). In Wilson, this 

Court held that a suspect could not prematurely invoke his rights to silence 

and counsel because he was not in custody when he attempted to invoke them. 

199 S.W.3d at 180 (“Thus, we conclude that Appellant was not in custody 

when he attempted to invoke his Miranda rights to silence and counsel. For 

that reason Appellant's Miranda rights had not yet attached, and he could not 

at that time make a valid assertion of those rights.”). 

Here, Bowman was in custody when he made the statements he claims 

were an invocation of his right to remain silent, but just moments before

Bowman had indicated his desire to speak to Det. Guffey by asking, “why you 

can’t (sic) talk to me right now?” And, Det. Guffey specifically ensured that he 

did not ask Bowman any questions, i.e., begin his interrogation, until Bowman 

was advised of his rights. Given that an officer was required to remain with 

Bowman throughout his time at the hospital according to policy, mirandizing 

him was appropriate. In addition, while Det. Guffey was attempting to read 
22 

Bowman his rights, Bowman began trying to speak to him five different times. 

After Det. Guffey completed the recitation of the warnings, Bowman responded 

to his questions and did not again attempt to invoke his right to silence. We 

therefore hold that the trial court did not err by finding that the statements 

Bowman made to Det. Guffey after he was mirandized were admissible.7 

 Moreover, even if this Court were to conclude that Bowman’s statements 

to Det. Guffey were admitted in violation of his rights under Miranda, the error 

was harmless beyond a reasonable doubt. See Jones v. Commonwealth, 641 

S.W.3d 162, 172 (Ky. 2022) (citing Winstead v. Commonwealth, 283 S.W.3d 

678, 689 n.1 (Ky. 2009)). The harmless beyond a reasonable doubt standard 

requires us to ask “whether, ‘absent [the impermissible testimony], is it clear 

beyond a reasonable doubt that the jury would have returned a verdict of 

guilty?’” Jones, 641 S.W.3d at 172 (quoting Baumia v. Commonwealth, 402 

S.W.3d 530, 539 (Ky. 2013)). 

 The footage of Det. Guffey speaking with Bowman at the hospital was but 

a nine-minute-long clip played within the context of a two-day trial with 

numerous witnesses. As noted, the substance of that clip was Bowman 

denying any involvement whatsoever with Mentee’s shooting: he said he was 

not at Retta’s, he did not have a gun, he was not fighting with anyone, etc. 

7 To clarify, nothing in this opinion shall be construed to hold that a suspect 

must first be mirandized in order to invoke his or her Miranda rights. As this Court 

previously said in Green v. Commonwealth, 815 S.W.2d 398, 400 (Ky. 1991), “[t]he 

giving of a Miranda warning does not suddenly endow a defendant with a new 

constitutional right. The right to remain silent exists whether or not the warning has 

been or is ever given. The warning is required not to activate the right secured, but to 

enable citizens to knowingly exercise or waive it.”
23

But, because of the security footage, which was unquestionably admissible, he 

was required to change that story at trial. On the basis of that footage alone, 

and in the absence of the clip of Bowman’s interview with Det. Guffey, a jury 

could have found Bowman guilty of murder. We therefore hold beyond a 

reasonable doubt that, had the clip of Bowman’s interview with Det. Guffey not 

been played, Bowman still would have been found guilty, and any error in its 

admission would have been harmless. 

B. Det. Guffey improperly narrated the surveillance footage without 

personal knowledge of the events depicted, but the error was not 

palpable. 

Bowman’s second assertion of error alleges that Det. Guffey improperly 

interpreted the surveillance video footage without personal knowledge of the 

events depicted in violation of KRE8 701 and KRE 602. Bowman acknowledges 

he failed to preserve this issue but has requested review for palpable error 

pursuant to RCr9 10.26.

For an error to be palpable, it must be “easily perceptible, plain, 

obvious and readily noticeable.” A palpable error “must involve 

prejudice more egregious than that occurring in reversible error[.]” 

A palpable error must be so grave in nature that if it were 

uncorrected, it would seriously affect the fairness of the 

proceedings. Thus, what a palpable error analysis “boils down to”

is whether the reviewing court believes there is a “substantial 

possibility” that the result in the case would have been different 

without the error. If not, the error cannot be palpable.

Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (footnotes omitted) 

(quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997); Ernst v. 

8 Kentucky Rule of Evidence. 

9 Kentucky Rule of Criminal Procedure. 
24

Commonwealth 160 S.W.3d 744, 758 (Ky. 2005); Schoenbachler v. 

Commonwealth 95 S.W. 3d 830, 836 (Ky. 2003)).

Bowman specifically complains about the following two pieces of 

testimony. As the portion of the surveillance footage showing Simpson 

escorting Bowman back onto the porch was being played for the jury, the 

Commonwealth and Det. Guffey had the following exchange:

CW:10 Was there more security system than we’re showing the 

jury today? I mean, was there hours of it that you had to go 

through?

Guffey: There is more footage available, yes. 

CW: When you watched all the footage, including what we’re 

showing the jury today, did you see anyone strike the defendant? 

Guffey: I did not. 

CW: Did you see anyone push the defendant?

Guffey: No.

CW: Did you see anyone get up in the defendant’s face in any way 

in all the video that you watched?

Guffey: I did not. 

CW: Did you see anyone point a gun at the defendant in any of the 

videos?

Guffey: I did not. 

We reiterate here that Bowman would later concede during cross-examination

that Mentee never attempted to hit or push him. 

10 Commonwealth.
25

Later, after the footage depicted Simpson, Hill, and the unidentified man 

putting themselves between Mentee and Bowman while Bowman and Mentee

were saying things back and forth to one another, there was a point at which 

Bowman was primarily arguing with Simpson, and Mentee was observing them 

and not saying anything for approximately one minute. At that point, the 

following exchange occurred:

CW: Does the victim seem to be saying anything to anybody for 

the last two minutes?

Guffey: No.

Bowman argues that this constituted an impermissible interpretation of the 

footage by Det. Guffey, and that it was a manifest reversible error under 

Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky. 2023), and Gordon v. 

Commonwealth, 916 S.W.2d 176 (Ky. 1995). We disagree. 

“KRE 602 and KRE 701 govern the admissibility of narrative testimony.” 

Kimmel, 671 S.W.3d at 244. KRE 701, in relevant part, limits lay opinion 

testimony to opinions or inferences which are “[r]ationally based on the 

perception of the witness[.]” KRE 701(a). In addition, KRE 602 provides that 

“[a] witness may not testify to a matter unless evidence is introduced sufficient 

to support a finding that the witness has personal knowledge of the matter.” 

In Gordon, the defendant was convicted of trafficking in a controlled 

substance following a controlled drug buy for which law enforcement used a 

paid informant. 916 S.W.2d at 178. At trial, a substantially inaudible tape

recording of the transaction was played for the jury after which the informant 

testified to his recollections regarding the salient portions of the conversation. 
26

Id. at 179-80. The tape was then replayed, and the informant was asked what 

he said. Id. at 180. Based on the informant’s response to that question, this 

Court concluded that “the witness purported to interpret the tape recording 

rather than testify from his recollection.” Id. The Gordon Court held this was 

error and the Court directed that, upon retrial,11 “[t]he court should refrain . . . 

from permitting the witness to interpret what is on the tape. It is for the jury to 

determine as best it can what is revealed in the tape recording without 

embellishment or interpretation by a witness.” Id. (citing Sanborn v. 

Commonwealth, 754 S.W.2d 534 (Ky. 1988)). 

In Kimmel, the defendant was observed shoplifting from Walmart by a 

loss prevention associate, Michael Knipp (Knipp). 671 S.W.3d at 233-34. 

During Knipp’s testimony, the Commonwealth introduced four surveillance 

videos, and Knipp provided narrative testimony of what they depicted either 

just before or just after each clip. Id. at 243. Videos 1, 2, and 4, showed the 

defendant entering the store, selecting a phone charger from a shelf, and 

existing the store, respectively. Id. at 244. The Kimmel Court noted that 

“[t]hese actions are clearly depicted by the video, and Knipp’s narration did not 

add to what jurors could view on the video themselves.” Id. at 244-45. 

However, video 3, which Knipp testified depicted the defendant removing a doll 

from his cart, turning his back to the camera, and putting the doll in his

11 The Court reversed and remanded on an unrelated issue. 
27

waistband, was so low quality that it was difficult to ascertain where he was or 

what he was doing. Id. at 245. This Court held: 

The difficulty in observing [the defendant] in the video, paired with 

the uncertainty as to which of [the defendant’s] actions Knipp 

personally observed, leads us to conclude that Knipp's narration as 

to Video 3 exceeded the bounds of KRE 602 and 701. Because we 

cannot definitively conclude whether Knipp's testimony exceeded 

his personal knowledge of the events, this narration should not 

have been permitted.

Nevertheless, we cannot say this error was palpable. The jurors 

watched the video and “were in a position to interpret the security 

footage independently from the testimony.” Additionally, the 

evidence against Kimmel was substantial, making it difficult to 

conclude that the jury was improperly persuaded by Knipp's oneline testimony describing Kimmel's actions. The error certainly 

was not palpable and so fundamental that it threatened the 

integrity of the judicial process.

Id. (citations omitted) (quoting Boyd v. Commonwealth 439 S.W.3d 126, 132 

(Ky. 2014) (citing Brewer v. Commonwealth 206 S.W. 3d 343, 349 (Ky. 2006) 

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

Here, Det. Guffey testified that: (1) in all the footage he reviewed he never 

saw anyone strike, push, get in the face of, or pull a gun on Bowman prior to 

the shooting; and (2) that at one point close in time to the shooting Mentee 

appeared to not say anything for a short period of time. Concerning the first 

piece of testimony, we clarify that the security footage played for the jury 

depicted the entirety of the events of the evening of December 19 from the time 

Bowman arrived at Retta’s until he walked away from Retta’s following the 

shooting. This Court is therefore unclear on what “other footage” the 

Commonwealth was referring to. But, at any rate, Bowman has never raised a 

hearsay objection based on Det. Guffey or the Commonwealth referring to 
28

evidence outside the record. The allegation of error Bowman raises is that Det. 

Guffey improperly testified that he never witnessed anyone strike, push, or 

otherwise threaten Bowman in the footage that was played for the jury, and 

that Mentee stopped speaking for a short period of time in the moments leading 

up to the shooting. 

We agree that Det. Guffey could not properly narrate the footage in this 

manner because he lacked the requisite personal knowledge of those events, 

and therefore error occurred. However, we cannot agree that the error was 

palpable. As previously noted, the footage itself was very high quality—unlike 

the tape recording in Gordon and “video 3” in Kimmel—and the jurors would 

have been free to interpret the film independently from Det. Guffey’s testimony. 

We accordingly cannot hold that, absent this portion of Det. Guffey’s testimony, 

there “is a substantial possibility that the result in the case would have been 

different[.]” Brewer, 206 S.W.3d at 349. 

C. The trial court did not err by providing the jury with an initial

aggressor limitation instruction.

Bowman next asserts that the trial court erred by providing the jury with

an initial aggressor limitation to self-defense instruction. A trial judge must 

consider the totality of the circumstances surrounding an incident when 

deciding whether an instruction on self-defense with limitations is proper and 

must find as a matter of law that there is sufficient evidence to justify a 

limitation instruction before submitting it to the jury. Conley v. 

Commonwealth, 599 S.W.3d 756, 776 (Ky. 2019). We review a trial court’s 
29

ruling regarding jury instructions for abuse of discretion. See, e.g., Daniel v. 

Commonwealth, 607 S.W.3d 626, 643 (Ky. 2020). “The test for abuse of

discretion is whether the trial judge's decision was arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.” Commonwealth v. English, 

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

The initial aggressor limitation statute, KRS12 503.060 provides in 

pertinent part:

Notwithstanding the provisions of KRS 503.050, the use of 

physical force by a defendant upon another person is not 

justifiable when:

. . .

(3) The defendant was the initial aggressor, except that his use of 

physical force upon the other person under this circumstance is 

justifiable when:

(a) His initial physical force was nondeadly and the

force returned by the other is such that he believes 

himself to be in imminent danger of death or serious 

physical injury; or

(b) He withdraws from the encounter and effectively 

communicates to the other person his intent to do so 

and the latter nevertheless continues or threatens the 

use of unlawful physical force.

The purpose of this limitation to self-defense is “to prevent a defendant from 

instigating a course of conduct then claiming he was acting in self-defense 

when that conduct unfolds.” Conley, 599 S.W.3d at 775 (quoting Hayes v. 

Commonwealth, 2015-SC-0050-MR, 2017 WL 639387, at *4 (Ky. Feb 16, 

12 Kentucky Revised Statute. 
30

2015)). “The initial aggressor limitation is added to a self-protection instruction 

if: (1) the facts support a self-protection instruction; and (2) there are facts that 

would support a juror's belief that the defendant was the initial aggressor.” 

Sutton v. Commonwealth, 627 S.W.3d 836, 853 (Ky. 2021). For a defendant to 

qualify as an initial aggressor, he or she “must use physical force prior to any 

act of purported self-protection.” Conley, 599 S.W.3d at 776. “Physical force” 

is defined as “force used upon or directed toward the body of another person 

and includes confinement.” KRS 503.010(4) (emphasis added). 

Before the trial court, the Commonwealth asserted that a self-protection 

jury instruction was not warranted because Bowman testified that Mentee 

accidentally shot himself. The trial court found that argument “interesting” but 

nonetheless rejected it based on its conclusion that, if the jury did believe 

Bowman pulled the trigger, it could then go on to decide whether it was done in 

self-defense, as the shooting occurring during a struggle. Following that 

ruling, defense counsel objected to an initial aggressor limitation instruction 

being provided because, based on Bowman’s testimony, Mentee was the initial 

aggressor and Bowman had attempted to remove himself from the situation by 

walking away but Mentee continued to threaten him. The trial court rejected 

this argument based on its reasoning that Bowman’s testimony versus the 

surveillance footage created a conflicting factual issue for the jury to decide. 

The court further found that Bowman’s act of pointing a gun at Mentee was 

sufficient to satisfy KRS Chapter 503’s definition of “physical force” because it 
31

constituted force “directed toward” the body of another, and therefore ruled 

that an initial aggressor limitation instruction was warranted. 

Bowman argues to this Court that the trial court erred by finding that 

his act of pointing a gun at Mentee satisfied the definition of “physical force.” 

From this Court’s review, there are no published precedents that address 

whether the act of pointing a gun at someone constitutes force “directed toward 

the body of another person.” KRS 503.010(4). But the unpublished cases of

Kingdon v. Commonwealth, 2014-SC-000406-MR, 2016 WL 3387066 (Ky. June 

16, 2016), and Kidd v. Commonwealth, 2020-SC-0433-MR, 2022 WL 2253588

(Ky. App. June 16, 2022), as well as common sense, support that conclusion. 

In Kingdon, the defendant believed the victim had burglarized his 

apartment and stolen money from him. 2016 WL 3387066, at *1. He 

confronted the victim while on a city bus, and after a heated argument the 

defendant pulled out a gun and shot the victim in the head. Id. The defendant 

testified that he acted in self-defense because he saw the victim reach into his 

own pants and believed he was attempting to get his own gun. Id. On appeal 

to this Court, the defendant asserted that the trial court erred by providing the 

jury with an initial aggressor instruction. Id. at *5. The Kingdon Court 

disagreed and held that because “the jury heard testimony that [the defendant] 

pursued [the victim] by chasing and boarding the bus so that he could confront 

[the victim] with a loaded gun and recover money [the victim] stole[,]” there was 

sufficient evidence for the jury to reasonably find that the defendant was the 

initial aggressor. Id. at *6.
32

In Kidd, the defendant, believing the victim had stolen drugs and money 

from him earlier that day, confronted the victim by brandishing a gun for 

twelve seconds before shooting the victim in the chest at point blank range. 

2022 WL 2253588, at *2. As in Bowman’s case, there was clear surveillance 

footage of the incident. Id. at *1. The defendant argued before the Court of 

Appeals that the trial court erred by providing the jury with an initial aggressor 

limitation instruction because “brandishing [a] weapon does not meet the 

definition of physical force.” Id. at *4. The Kidd Court disagreed and held that 

“a jury could view [the surveillance] video and believe it to be direct evidence of 

[the defendant] acting as the initial aggressor.” Id. at *5.

In addition to Kingdon and Kidd, this Court concludes it would be 

patently absurd to hold that pointing a loaded firearm at someone’s head at 

close range does not qualify as directing force towards the body of that person. 

Accordingly, at the very least, we cannot say that the trial court’s conclusion 

was “arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” English, 993 S.W.2d at 945.

D. The trial court erred in the manner it polled the jury, but the error was 

not palpable. 

The final assertion of error raised by Bowman is that the trial court 

polled the jury after each of his trial’s three phases in a manner that violated 

RCr 9.88, and was reversible error under Miles v. Commonwealth, 256 S.W.3d 

46 (Ky. App. 2008). While we agree that the trial court erred, we hold that the 

error was not palpable. 
33

Following the initial guilt phase of trial, after the jury’s verdict was read, 

Bowman requested that the jury be polled. The trial judge then addressed the 

jury by saying, “Alright ladies and gentlemen, I’m going to poll the jury. What 

that means, I’m going to ask each and every one of you if that was your verdict,

so I’ll start right up here, ma’am was that your verdict?” After the first juror 

answered “yes,” the judge then asked “sir?” or “ma’am?” to each juror 

individually while gesturing towards them with his hand until he got to the

final four jurors, to which he only gestured. Each juror verbally responded 

“yes.” 

Next, after the jury’s verdict was read in the guilt phase for the charge of 

felon in possession of a firearm, Bowman again asked the trial judge to poll the 

jury. The judge addressed the jury stating, “Same thing we did before, one by 

one I’m going to ask if that’s your verdict.” This time the judge only gestured to 

each juror with his hand, and each juror verbally responded “yes” or “yeah.” 

Finally, after the jury’s verdict was read for the sentencing phase of the 

trial, Bowman asked that the jury be polled. The trial judge stated, “Same as 

before, I’m going to poll the jury. I’m going to ask each of you if it was your 

verdict.” The judge gestured and said “ma’am?” to the first juror, and then 

gestured towards each of the remaining jurors. Each juror again verbally 

responded “yes” or “yeah.”

Bowman never objected to the manner in which the jury was polled, nor 

did he request that the trial judge specifically ask each juror “was that your 

verdict?” He now asserts before this Court that the way the jury was polled 
34

was reversible error. We accordingly agree with the Commonwealth’s assertion 

that this error is unpreserved. Nevertheless, Bowman has requested review for 

palpable error pursuant to RCr 10.26 and we will review under the palpable 

error standard cited in Section II(B) of this opinion. 

RCr 9.88 directs that “[w]hen the verdict is announced, either party may 

require the jury to be polled, which is done by the clerk's or court's asking each 

juror if it is his or her verdict. If upon the poll, there is not unanimous 

concurrence, the verdict cannot be received.”

The right to poll the jury in criminal causes has in this state 

always been deemed an essential part of the right of trial by jury.

It is guaranteed by both the constitution and the statute, and 

ought to be maintained and preserved by the courts as essential to 

the protection of the rights of the citizen.

Temple v. Commonwealth, 77 Ky. 769, 771 (1879); Ky. Const. § 11. An 

accused’s right to poll the jury may be waived, Carver v. Commonwealth, 256 

S.W.2d 375, 377 (Ky. 1953) (citing Johnson v. Commonwealth, 215 S.W.2d 838, 

839 (Ky. 1948)), but waiver did not occur in the case now before us. 

In Miles, the trial court polled the jury in a somewhat similar manner as 

the trial court in this case:

the trial court did not “ask [each] juror” if this was his or her 

verdict. The court’s method of polling the six jurors took exactly 

four seconds:

Court: [Visually scanning the jury as a whole] Is that 

the verdict of the jury?

[looking at one juror] That your verdict?

[looking at a second juror] Your verdict ma’am?

[looking at a third juror] Sir? 
35

256 S.W3d at 46-47. After the court asked the foregoing four questions to the 

jury, the defendant asked the trial court to “properly poll the jury[,]” to which 

the court replied, “I just did[.]” Id. at 47. The Court of Appeals held that the 

trial court’s failure to ask each juror individually about the verdict deprived the 

defendant of his right under RCr 9.88 to have the jurors polled individually, 

necessitating reversal. Id. 

We therefore agree with Bowman’s contention that the trial court erred in

the manner it polled the jury after each phase of his trifurcated trial.

Nevertheless, this Court cannot say that it resulted in manifest injustice or that 

there “is a ‘substantial possibility’ that the result in the case would have been 

different[.]” Brewer, 206 S.W.3d at 349. To do so, we would have to believe 

that there is a substantial possibility that one or more jurors would have 

changed their answer from “yes” to “no” if the trial court had asked “was that 

your verdict” instead of stating that it was going to poll the jury, explaining 

what that meant, and then gesturing to each individual juror to elicit a 

response. We therefore affirm.

III. CONCLUSION

Based on the foregoing, we affirm. 

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

concur. Thompson, J., concurs in result only. 
36

COUNSEL FOR APPELLANT:

Christopher Barrett Thurman

Louisville Metro Public Defender 

COUNSEL FOR APPELLEE:

Russell M. Coleman 

Attorney General of Kentucky 

Jeffrey Allan Cross 

Assistant Solicitor General