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1

RENDERED: SEPTEMBER 24, 2020

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0023-MR

GILBERT HALL APPELLANT

ON APPEAL FROM BRACKEN CIRCUIT COURT

V. HONORABLE STOCKTON B. WOOD, JUDGE 

NO. 17-CR-00031

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A circuit court jury convicted Gilbert Hall of second-offense trafficking of 

a controlled substance in the first degree and recommended a sentence of 

twenty years’ imprisonment. He now appeals the resulting judgment as a 

matter of right.

1 He argues that the trial court erred by denying his motion to 

suppress evidence obtained under a warrant to search his residence and that 

palpable error resulted from extraneous information contained in trial exhibits 

available for the jury’s review during deliberation. 

We affirm the judgment. We hold that the trial court properly denied 

Hall’s motion to suppress because the issuance of the search warrant for the 

residence was supported by probable cause and because any error resulting 

from the jury’s access to exhibits containing extraneous information was 

 

1 Ky. Const. § 110(2)(b).
2

waived by trial counsel’s failure to object, and otherwise fails to rise to the level 

of palpable error. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Trooper Currans believed individuals with outstanding arrest warrants 

were staying in Gilbert Hall’s residence. He therefore called Hall and obtained 

his permission to enter the residence to search for these individuals. Once 

inside, Currans observed two padlocked doors downstairs and three women 

upstairs, all with outstanding arrest warrants.

Currans first approached Chelsey Curtis, who was sitting in a room with 

a hole in the wall that visibly held a green Crown Royal bag. The bag contained 

needles and a spoon with residue. When asked if the bag was hers, she stated 

she would claim it but that it contained “a little bit of everyone’s things.” She 

also informed Currans that a needle was in the drawer of the dresser. 

In another room, Currans located two other women, Chylynn Elliot and 

Hope Elliot. On a table inside the room they occupied, Currans observed a 

plate holding a syringe, a razor blade, and a plastic bag. As he was leaving, he 

saw in an unoccupied room a spilled trashcan containing needle caps. 

Based on these observations, Currans sought and obtained from the trial 

commissioner a search warrant for the premises. The search revealed 

additional drug paraphernalia and a locked safe. He then obtained a second 

search warrant for the safe and found inside methamphetamine, marijuana, a 

digital scale, cash, a rolled-up dollar, straws, a cell phone, needles, and a 

needle cap. 
3

Hall was later indicted on one count of trafficking a controlled substance 

of more than two grams of methamphetamine in the first degree, second 

offense. He moved to suppress the evidence against him based on a lack of 

probable cause for the first search warrant, but the trial court denied his 

motion. 

II. ANALYSIS

A. The Trial Court Properly Denied the Defendant’s Motion to 

Suppress. 

In reviewing a trial court’s suppression-motion ruling, an appellate court 

first determines if substantial evidence supports the factual findings.2 The 

proper factual findings are then reviewed to determine if the trial court 

accurately decided that the issuing judicial officer had a substantial basis for 

concluding probable cause existed.3 So we review the trial court’s conclusion

that a substantial basis existed for the trial commissioner’s determination of 

probable cause.4 The trial commissioner’s decision is given deference, and a 

reviewing court only considers the information within the four corners of the 

affidavit.5

 

2 Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010); Beemer v. 

Commonwealth, 665 S.W.2d 912, 915 (Ky. 1984) (applying the “substantial basis” test 

to the decision of the warrant-issuing judge to determine if there was probable cause). 

3 Pride, at 49. (“The proper test for appellate review of a suppression hearing 

ruling regarding a search pursuant to a warrant is to determine first if the facts found 

by the trial judge are supported by substantial evidence, and then to determine

whether the trial judge correctly determined that the issuing judge did or did not have 

a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.”) (citing Illinois v. 

Gates, 462 U.S. 213, 238 (1983)).

4 Id. 

5 Id. (“[A]ll reviewing courts must give great deference to the warrant-issuing 

judge's decision . . . . ”) (citing Gates, 462 U.S. at 238).
4

The Fourth Amendment of the U.S. Constitution and Section 10 of the 

Kentucky Constitution protect a citizen from unreasonable searches and 

seizures. A search warrant is required to “allow a neutral judicial officer to 

assess whether the police have probable cause to make an arrest or conduct a 

search.”6 Any valid search warrant must be adequately supported by probable 

cause.7 In determining if probable cause exists, the issuing judicial officer 

evaluates the totality of the circumstances, as described in the supporting 

affidavit.8 The issuing judicial officer must consider the circumstances stated 

in the affidavit and determine if they establish a fair probability that 

contraband or evidence of a crime will be found in the place to be searched.9

In the present case, substantial evidence supported the trial court’s 

finding that the warrant was supported by probable cause. The totality of the 

circumstances described in the affidavit indicated that evidence of drug 

trafficking would likely be found at Hall’s residence. The affidavit stated that 

Currans, after entering the home with Hall’s permission, observed various drug 

paraphernalia, such as needle caps, razor blades, and residue on spoons. 

Further, the affidavit described that he found three women with outstanding 

arrest warrants who were staying there. Additionally, most of the 

paraphernalia Currans observed remained unclaimed at the time he applied for 

a warrant. The green Crown Royal bag was partially claimed by Curtis, who 

 

6 Id. 

7 Id.

8 Beemer, 665 S.W.2d at 914.

9 Id. at 915.
5

stated it was hers but that it contained everyone’s things. However, no one 

claimed the discarded needle caps or the plate, syringe, or razor blade. The 

unclaimed items, the padlocked doors, and the fact that Currans saw drug 

paraphernalia in three different rooms located near or in the possession of two 

women staying at Hall’s residence established that additional evidence of drug 

trafficking would likely be found inside the residence. 

Therefore, substantial evidence supported the trial court’s determination 

that probable cause existed because the affidavit provided the issuing trial 

commissioner a substantial basis to conclude evidence of drug trafficking 

would likely be found at Hall’s residence. As such, we affirm the trial court’s 

denial of the suppression motion. 

B. Hall is not entitled to a new penalty-phase trial. 

Hall contends that he is entitled to a new penalty phase because he was 

prejudiced by extraneous information contained in the Commonwealth’s 

exhibits introduced during the penalty phase of the trial. During the penalty 

phase, the jury heard testimony from Hall’s parole officer listing his extensive 

history of criminal convictions. The Commonwealth then introduced copies of 

these prior convictions as trial exhibits. And the trial court sent these exhibits 

into the jury room, making them available for review by the jury during 

deliberation. The Commonwealth does not dispute that some of these exhibits 

contained extraneous information: a listing of an amended charge and the 

names of two of Hall’s prior victims. 
6

1. Hall waived for this appeal the issue of extraneous information 

appearing in the Commonwealth’s penalty phase exhibits. 

As an initial matter, we note that any error resulting from the 

information within the exhibits was invited and, therefore, could be properly 

considered waived on appeal.10 Lack of objection can result in either the issue 

being unpreserved or waived.11 An issue is waived when there is a knowing 

relinquishment of a right.12 This requires some affirmative act by the waiving 

party.13 For example, in Quisenberry v. Commonwealth, the defense approved 

jury instructions after being able to review them and raise any objections.14 As 

a result, any error arising from the instructions was invited because any issue 

with the instructions should have been raised after reviewing them.15 So the 

right to challenge the instructions on appeal was relinquished.16 Similarly in 

Graves v. Commonwealth, an error in jury instructions was waived because 

defense counsel was informed of the defect at trial by opposing counsel but 

raised no objection and subsequently approved them.17 The trial counsel’s 

awareness and acceptance of the proposed, defective jury instructions invited 

 

10 Salisbury v. Commmonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977).

11 Quisenberry v. Commonwealth, 336 S.W.3d 19, 37–38 (Ky. 2011).

12 Id. at 38.

13 Id.

14 Id. at 37, 38.

15 Id. at 38.

16 Id. at 37 (“[H]owever, at the close of proof, when the trial court and parties 

were discussing the jury instructions, Quisenberry himself requested facilitation 

instructions and referred the court to evidence he claimed supported them. These 

alleged errors, therefore, were not merely unpreserved, they were invited.”).

17 384 S.W.3d 144, 152 (Ky. 2012).
7

any instructional error such that any challenges to them were waived on 

appeal.18

Further, even if counsel is unaware of an issue, if it could have been 

discovered through adequate investigation it is waived on appeal. For example, 

in McQueen v. Commonwealth, a jury selection issue was not raised during trial 

because counsel was not aware of it.19 But the issue was waived on appeal 

because “[t]hrough the exercise of reasonable diligence, McQueen's counsel 

could have discovered the disqualification of Juror S.S. prior to examining the 

jurors . . . . As such, we hold that McQueen waived his jury selection 

argument.”20 Trial counsel could have discovered the issue and objected at 

trial, but having failed to do so, could not later raise the issue on appeal.21

Likewise, in Cummings v. Commonwealth, a jury-empanelment issue was 

waived because there was “no indication in the record that the defense should 

not have been similarly aware of the erroneous presence of Juror #25.”22 The 

issue was not merely unpreserved but waived because counsel had the 

opportunity to know of the error and to object during trial.23

In this case, Hall has waived his right to challenge the Commonwealth’s 

penalty-phase exhibits because any prejudicial information in the exhibits 

 

18 Id. at 152. 

19 339 S.W.3d 441, 446–47 (Ky. 2011).

20 Id. at 447.

21 Id. 

22 560 S.W.3d 844, 846 (Ky. 2018).

23 Id. at 845. 
8

could have been discovered through a reasonable investigation and defense 

counsel allowed them to be submitted to the jury without reviewing them. Any 

error that resulted from the extraneous information in the exhibits was invited 

because all counsel had ample opportunity to review them and make proper 

objections. The issue at hand is like that in McQueen where counsel would 

have been aware of the jury-empanelment issue if a reasonable investigation 

had been made.24 Here, defense counsel, the Commonwealth, and the trial 

court engaged in two bench conferences to discuss the exhibits and their 

contents. Defense counsel made no objection or request to review the 

documents at the bench conferences or any other time during trial. Defense 

counsel could have become aware of any extraneous information in the exhibits 

if she had exercised reasonable diligence in reviewing them.

Further, counsel’s actions affirmatively relinquished the right to 

challenge the exhibits on appeal. Quisenberry and Graves found juryinstruction issues to be waived on appeal when the attorneys approved them 

without objection.25 In the current matter, Hall’s counsel did not specifically 

approve the exhibits, but during the first bench conference in which the 

exhibits were discussed, the Commonwealth seemed uncertain about the 

information within them, and Hall’s counsel specifically told the trial court she 

had not seen them. The Commonwealth’s uncertainty as to the information in 

the exhibits and the defense counsel’s acknowledgment that she had not 

 

24 McQueen, at 447.

25 Quisenberry, 336 S.W.3d at 38; Graves, 384 S.W.3d at 152.
9

reviewed them should have resulted in either a request from defense counsel to 

examine them, or an objection. During the second bench conference, it 

became clear that the jury would have access to the exhibits during 

deliberations. Even though the Commonwealth stated it had double-checked 

them for extraneous information, Hall’s counsel still made no request to review 

them herself and made no objection. Therefore, defense counsel invited any 

error resulting from the jury’s access to the exhibits. Defense counsel was 

aware that she had not reviewed them, that the jury would have access to 

them, and that earlier uncertainty existed as to the information they contained. 

Thus, any challenge to the extraneous information in the exhibits was waived 

on appeal. 

2. The extraneous information in the Commonwealth’s penalty phase 

exhibits did not result in palpable error. 

Because neither party addressed the waiver issue on appeal, we will 

analyze, as requested by Hall, the errors that appear of record arising out of 

extraneous information found in the exhibits sent to the jury room. Because 

this issue was unpreserved, we review for palpable error.26 Palpable error 

occurs when the defendant suffers egregious prejudice that seriously affected 

the fairness of the proceeding and creates a substantial possibility that the 

 

26 Stansbury v. Commonwealth, 54 S.W.3d 293, 300 (Ky. 2015). 
10

result would not have been the same despite the error.27 Overall, the error 

must have resulted in a manifest injustice.28

a. The improperly admitted amended charge did not result in palpable 

error.

Under KRS 532.055, admissible evidence during the penalty phase 

includes: (1) minimum parole eligibility, prior convictions of the defendant, 

both felony and misdemeanor; and (2) the nature of prior offenses for which he 

was convicted. But, “[t]he evidence of prior convictions is limited to conveying 

the jury the elements of the crimes previously committed . . . . Additionally, 

the trial court should avoid identifiers, such as naming of victims, which might 

trigger memories of jurors who may—especially in rural areas—have prior 

knowledge about the crimes.”29

During the penalty phase of Hall’s trial, the jury was potentially exposed 

to extraneous information including a prior amended charge of second-degree 

burglary, names of two prior victims, one of whom was from the surrounding 

area, and a court document stating he was likely to recidivate. Overall, it was 

 

27 Id. at 300 (“A palpable error ‘affects the substantial rights of a party . . . and 

appropriate relief may be granted upon a determination that manifest injustice has 

resulted from the error.’ To ascertain the existence of manifest injustice, ‘a reviewing 

court must plumb the depths of the proceeding . . . to determine whether the defect in 

the proceeding was shocking or jurisprudentially intolerable.’”) (citing Martin v. 

Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)).

28 Prescott v. Commonwealth, 572 S.W.3d 913, 922 (Ky. App. 2019) (“When an 

appellate court engages in a palpable error review, its focus is on what happened and 

whether the defect is so manifest, fundamental and unambiguous that it threatens the 

integrity of the judicial process.”).

29 Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky. 2011).
11

error for the jury to have access to the amended charge and names of victims, 

but this did not result in a manifest injustice. 

The jury’s exposure to Hall’s amended charge did not egregiously affect 

his sentence. In deciding if improperly admitting dismissed or amended 

charges constitutes palpable error, the reviewing court considers if the 

defendant was ultimately sentenced to the maximum penalty and how directly 

the jury was introduced to the extraneous prejudicial information.30 For 

example, in Blane v. Commonwealth, the jury’s exposure to improper direct 

testimony about incorrect and ultimately dismissed charges created a palpable 

error and warranted resentencing.31 The live, incorrect testimony about the 

defendant’s prior charges was unduly prejudicial and likely had a significant 

effect on the jury’s penalty deliberations.32

In contrast, in Martin v. Commonwealth no palpable error occurred even 

though the jury had access to the defendant’s amended charges during their 

penalty deliberations because the trial testimony about the prior convictions 

was proper.33 The jury’s less direct exposure to the defendant’s amended and 

dismissed charges during deliberations, as compared to hearing live, incorrect 

testimony, decreased the risk that the extraneous information would 

egregiously affect the outcome.34 The Court found it was more likely the jury’s 

 

30 Martin, 409 S.W.3d at 348–49.

31 364 S.W.3d 140, 153 (Ky. 2012). 

32 Id. at 153.

33 409 S.W.3d at 348–49.

34 Id. at 349. 
12

sentence was influenced by the defendant’s criminal history and the crime 

committed instead of the amended charges.35 Similarly, in Miller v. 

Commonwealth, the erroneous discussion of the defendant’s uncharged prior 

bad acts was error but did not result in a manifest injustice because the jury 

was properly aware of the defendant’s three prior convictions, multiple parole 

violations, and continued drug use on parole.36 The jury’s exposure to his 

uncharged conduct was erroneous, but the jury was not so unfairly influenced 

by it to constitute palpable error in light of his other criminal conduct.37

During deliberation in Hall’s penalty phase, the jury had access to an 

exhibit listing his amended charge of second-degree burglary. The discrepancy 

between the indictment charging him with first-degree burglary and the 

judgment explaining his plea to second-degree appears on separate pages. 

Appellant contends the indictment was the first page of the documents sent 

back to the jury. It is uncertain whether the jury viewed the exhibits because 

the documents were handed to the bailiff only to give to the jury if they 

requested to see them. While it is unclear if the jury saw this extraneous 

information, this analysis will presume it did.38

 

35 Id.

36 394 S.W.3d 402, 405–408 (Ky. 2011).

37 Id. at 408.

38 Martin, at 348 (Ky. 2013); Parker v. Commonwealth, 482 S.W.3d 394, 407 (Ky. 

2016) (“The trial record does not make clear that the certified documents were, in fact, 

admitted into evidence. And even if they were introduced, the record further does not 

establish that the jury had access to them. Nevertheless, as in Martin we may 

presume that the unredacted certified records were erroneously provided to the jury 

when it retired to deliberate.”) (citation omitted). 
13

It was error to show the amended charge. But we are satisfied that such

error did not likely influence the jury’s sentence. By way of live testimony given 

by Hall’s parole officer, the jury was made aware of Hall’s prior convictions and 

this was one prior conviction among eight. Additionally, unlike in Blane, where 

the jury heard trial testimony about incorrect amended and dismissed charges, 

Hall’s jury was never directly informed of the amended charge.39 Here, the 

circumstances are more like Martin, as the jury was only exposed to an 

amended charge during the deliberations, and it was for the same crime of 

which Hall was eventually convicted, just for a lesser degree. Additionally, the 

jurors heard testimony regarding his prior offenses and were aware of the 

second-degree burglary charge. So, while the jury may have considered his 

prior offenses in determining his sentence, it is unlikely it specifically 

considered that he was originally charged with first-degree burglary but 

pleaded to second-degree. While this information should not have been 

submitted to the jury, it does not seem likely it was heavily considered in 

deciding Hall’s sentence. 

b. Exposure to the names of Hall’s prior victims did not result in 

palpable error.

Hall’s jury also had access to exhibits containing the names of two of his 

victims from earlier crimes, but we again conclude such error did not 

egregiously affect his sentence. In Stansbury v. Commonwealth, the jury’s 

 

39 Blane, 364 S.W.3d at 152-53. Also, the Court notes that in Taulbee v. 

Commonwealth, 438 S.W.2d. 777, 779 (1969), prejudice was presumed because of the 

jury’s exposure to direct inflammatory testimony by the prosecutor; however, the 

current facts involve no issue with trial testimony. 
14

access to the defendant’s amended charges and the names of his prior victims 

who were from the same small county as where the jury was seated resulted in 

palpable error.40 In a rural area, when the jury is exposed to the name of a 

victim from the same venue as the trial, it is perhaps more likely a juror might 

know the victim or their family.41 Further, Stansbury’s jury was also exposed 

to his amended charge for one out of two of his prior convictions.42 An 

amended charge among a limited criminal history is more prejudicial than 

when it is listed within an extensive criminal history because it becomes more 

likely the jury will notice it and give it weight in their deliberations.43 The 

combination of the substantial prejudice from the jury’s exposure to the 

victim’s names and the amended charge resulted in a manifest injustice.44

In the present case, the jury was exposed to the name of Jennifer Hall, 

who is from Fleming County, because that name appeared on the exhibit 

evidencing Hall’s prior domestic-violence charge in that county. Hall argues 

that because Fleming County is near Bracken County, where the present trial 

took place, and both are rural counties, palpable error occurred as in 

Stansbury. But during voir dire at Hall’s trial the prospective jurors were 

asked if any of them knew Jennifer Hall because she is Hall’s former spouse. 

Additionally, the chance of a jury member knowing Jennifer Hall is lessened by 

 

40 454 S.W. 3d 293, 304–05 (Ky. 2015). 

41 Id. at 304.

42 Id. at 305. 

43 Id. 

44 Id. 
15

her residing in Fleming County rather than Bracken County. Bracken and 

Fleming Counites are both within the 19th Judicial Circuit but are separated 

from each other by Mason and Robertson counties. There is a remote chance 

that a member of the jury did not forthrightly respond during voir dire 

concerning their knowledge of Jennifer Hall, but the inquiry removes the 

likelihood of prejudice as identified in Stansbury. The trial taking place in a 

venue different from the venue where the prior charge was prosecuted 

combined with the screening during voir dire renders unlikely the prospect that 

the appearance of Jennifer Hall’s name as a victim in Hall’s criminal history 

was extremely prejudicial to Hall. 

In another exhibit, the jury had access to the name of Hall’s previous 

victim, “Officer Charlie Sims,” who is listed in Hall’s 2001 Adams County, Ohio 

indictment for intimidation of a witness. However, there is no evidence or 

indication that any member of the jury knew the officer, or that he was from 

Bracken County. Further, the incident apparently arose in Adams County, 

Ohio, which lessens the probability that a member of this Bracken County jury 

knew Officer Charlie Sims. We are satisfied that the appearance of Officer 

Charlie Sims’s name in an exhibit potentially viewed by the jury did not result 

in the extreme prejudice as in Stansbury. 

Although the names of the previous victims were admitted alongside an 

amended charge, unlike Stansbury, where the defendant only had two prior 

convictions and the amended charges related to one of the two, Hall has an 

extensive criminal history and his jury was properly made aware of his seven 
16

prior convictions during the trial.45 Therefore, while it was error for the jury to 

have access to the amended charge and the names of his prior victims, the 

probability that the outcome was egregiously affected by these errors is low and 

does not constitute palpable error.

c. The jury’s access to information that Defendant was likely to 

reoffend did not result in palpable error.

Also available to the jury were documents stating Hall had violated his 

community control for prior crimes, had committed new offenses before 

completing parole, and that he was likely to recidivate. For example, page two 

of the Commonwealth’s Exhibit #13 lists a finding that Hall is likely to reoffend 

because he has committed offenses while on community control in Ohio and 

has a repetitive criminal history. The jury knew of his criminal history because 

of his parole officer’s testimony about Hall’s seven prior convictions and that he 

was a repeated felony offender. The jury could reasonably infer from the 

testimony that because he had repeatedly offended in the past, he was likely to 

do so again, and therefore the maximum penalty should be imposed. Further, 

the jury asked one question during their brief deliberations regarding how long 

Hall had served for his previous eleven-year sentence. This may suggest that 

the jury was contemplating his prior convictions and the effectiveness of his 

 

45 454 S.W. 3d at 305 (“Stansbury's only prior convictions consisted of two 

counts of third-degree burglary and third-degree criminal mischief and one count each 

of third-degree assault and third-degree arson. We cannot say that introduction of the 

dismissed wanton endangerment charge, which was filed in conjunction with the 

assault and arson charges, did not have an impact. Furthermore, we cannot say that 

the introduction of the identities of local victims with whom the jurors might have had 

a connection did not have an impact.”).
17

past punishments. While it cannot be said that the jury’s sentence of twenty 

years was not influenced by the extraneous information, it did not cause such 

egregious error to result in a manifest injustice. 

Hall’s jury was erroneously exposed to extraneous information during 

deliberation of the penalty phase of Hall’s trial in the form of an amended 

charge, names of the two prior victims, and a statement that Hall was likely to 

reoffend. We find that this exposure did not create a substantial likelihood of 

manifest injustice. The jury’s recommended sentence of twenty years was more 

likely the result of consideration of Hall’s extensive criminal history, 

ineffectiveness of previous punishments, and lack of acceptance of 

responsibility. Moreover, we are persuaded that Defense counsel waived the 

erroneous nature of the exhibits. We conclude that Hall is not entitled to a new 

penalty phase. 

III. CONCLUSION

For the reasons stated above, we affirm the judgment.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Molly Mattingly

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

James Patrick Judge

Assistant Attorney General