RENDERED: SEPTEMBER 24 , 2020 TO BE PUBLISHED 

# Supreme Court of Kentucky

2019

- SC

- 0175

- DG

MAURICE DEAL APPELLANT

ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2018

- CA

- 0 071

JEFFERSON CIRCUIT COURT NO. 15

- CR

- 002748

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

REVERSING AND REMANDING A circuit court jury convicted Maurice Deal of second

- degree manslaughter by complicity for which the jury recommended ten years’ imprisonment. On appeal, the Court of Appeals affirmed the judgment. We accepted discretionary review to address whether the t rial court committed
reversible error when it allowed the Commonwealth to present at trial a thirty

five

- minute video of a police interview with Deal

— recorded while he was in jail on the underlying charges some two months post arrest

— in which Deal is
shown handcuffed and wearing an inmate’s jumpsuit

. We conclude this evidentiary presentation violated Deal’s constitutional right to a fair trial. Accordingly, we reverse the judgment of conviction and sentence and remand
the case to the trial court for a new trial.2 I. BACKGROUND Joseph Keith Otis was shot dead while in a fist fight in a nightclub parking lot, and the man with whom he fought, Maurice Deal , was shot through the hand and fled the scene. While Deal was at the hospital receiving treatment for his wound, two police officers separately questioned him and apparently informed him that Otis , too, had been shot. Two days later , police
arrested Deal for murder and jailed him. 1 Deal remained in jail, unable to post
bail pending trial. The video of Deal came about this way. An As sistant Commonwealth’s
A ttorney and the lead homicide detective

— one of the two officers who had interviewed Deal at the hospital

— met Deal and his attorne y at the jail and questioned Deal. They recorded the questioning, which las ted about thirty

- five

minutes . Throughout the interview, Deal was handcuffed and wore a jumpsuit designed so that the wearer can be readily identified as a n inmate. During the interview, Deal admitted that he started the fight with Otis , motivated by
revenge for a n earlier fight in which Otis bested him

. But Deal denied knowing
who fired the shots that killed Otis and wounded him. Sometime before trial, the Commonwealth fur nished Deal’s attorney an
audio version of the interview. But on the night before trial, Deal’s attorney

1 Deal’s brother, Norman, who was also at the club with Deal the night Otis was killed, was also indicted in connection with Otis’s death. By agreement, the indictments were severed for trial, and the record does not disclose the outcome of Norman ’s case.3

learned of the existence of a video version. Before trial started the following morning, he moved the trial court to pr ohibit the Commonwealth from displaying th e video version to the jury

. He argued that the video of Deal’s
statement would unduly prejudice Deal before the jury because the jury would see Deal in custody, handcuffed and dressed as an inmate, two months after his arrest on the charges on trial. In response, the Commonwealth argued that the video would not prejudice Deal because it is to be expected that an individual charged with murder would be in custody pending trial. Without requiring the Commonwealth to respond as to why the audio version would not suffice, the trial court denied Deal’s motion. The trial court agreed with the Commonwealth that because Deal was charged with murder, no one would be surprised that he w as i n jail. “ [T] hat’s just routinely done, ” the
trial court stated. “[A] lmost everybody’s in custody, eventually, especially after a murder investigation.” The Commonwealth displayed the video for the jury in its entirety during
its case

- in

- chief, during Sergeant Wilder’s testimony. Deal’s counsel renewed his objection r ight before the Commonwealth played the video. In denying Deal’s objection to the video display, the trial court granted Deal’s counsel a standing objection to the playing of the video. At trial, the Commonwealth offered evidence to prove that on the nigh t
Otis was killed , Deal conspired w ith his brother to c onfront Otis at the night club to exact revenge for the earlier beating. The Commonwealth asserted
that Deal’s brother shot and killed Otis using a gun supplied by Deal. At the4

close of evidence, the trial court instructed the jury on m urder, second

- degree manslaughter , and reckless homicide . The jury found Deal guilty of second

degree manslaughter by complicity and recommended a penalty of ten years’ imprisonment. The trial court accepted the jury’s recommended penalty and entered final judgment accordingly. On appeal to the Court of Appeals, Deal argued that the video presentation compromised his constitutional right to a fair trial and the presumption of innocence. He also asserted that the trial court should have, at the very least, acted on its own motion to admonish the jury that Deal’s appearance in the video was not evidence of his guilt. The Court of Appeals
affirmed the judgment on all issues, concluding that any error in admitting the
vid eo was harmless

. II. ANALYSIS Before this Court, Deal argues that the principles established by the United States Supreme Court in Estelle v. Williams 2 and Deck v. Missouri 3 apply
to his case and compel the conclusion that the trial court abused its discretio n by overruling his objection to this video display. Similarly, he argues that the Court of Appeals erred by holding that even if the video was erroneously admitted, it was harmless. T he Commonwealth responds by citing this Court’s
decisions in Shegog v. C ommonwealth , 4 Estep v. Commonwealth , 5 and Bryan v.

2 425 U.S. 501

. 3 544 U.S. 622

. 4 142 S.W.3d 101 (Ky. 2004).

5 663 S.W.2d 213 (Ky. 1983).5

Commonwealth 6 to support its argument that the Court of Appeals correctly
held that t he trial court did not abuse its discretion by allowing the video into
evidence . The Commonwealth also asserts it even if the trial court erred, the Court of Appeals correctly deemed it harmless error . We hold that the trial court abused its discretion by allowing this video. Showing it to the jury violated Deal’s due process right s based on the rules enunciated by the Supreme Court in Estelle v. Williams 7 and Deck v. Missouri 8 and by this Court in Shegog , 9 Estep , 10 and Bryan v. Commonwealth

. 11 And we are not persuaded that the constitutional error was harmless beyond a
reasonable dou bt.
A. Standard of Review
We review o bjections to a trial court’s evidentiary rulings for abuse of
discretion. 12 “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 13 Erroneous evidentiary rulings are ordinarily subject to harmless

-

6 2015

– SC

– 000467

– MR , 2017 WL 1102825 (Ky. Mar. 26, 2017).

7 425 U.S. 501

. 8 544 U.S. 622

. 9 142 S.W.3d 101

. 10 663 S.W.2d 213

. 11 2017 WL 1102825

. 12 Matthews v. Com monwealth, 163 S.W.3d 11, 19 (Ky. 2005).

13 Com monwealth

. v. English , 993 S.W.2d 941, 945 (Ky. 1999) (“The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”).6

error review under RCr 14 9.24 and therefore may only be used as a basis to reverse or vacate a judgment if we cannot “ say with fair assurance that the judgment was not substantially swayed by the error .” 15 But when the evidentiary ruling is found to be erroneous because it violat ed a defendant’s constitutional rights, the error is still subject to harmless error review but the error may be used as basis to reverse or vacate a judgment if we cannot say the error was harmless beyond a reasonable doubt. 16
Because Deal claims that the trial court violated his constitutional rights to a fair trial and the presumption of innocence, Deal is entitled to a new trial if we find that the trial court abused its discretion in admitting the video and the error cannot be said to be harmless beyon d a reasonable doubt.
B. The Relevant Law That a criminal defendant should not be required to appear before the jury in shackles is a time

- honored tenet of our jurisprudence. 17 Eventually, the

14 Kentucky Rules of Criminal Procedure

15 Ordway v. Com

monwealth, 391 S.W.3d 762 , 774 (Ky. 2013) ; RCr 9.24 (“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or o mitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be in consistent with substantial justice.”).

16 Ordway , 391 S.W.3d at 774 (citing Winstead v. Com monwealth , 283 S.W.3d 678, 689 (Ky. 2009) ).

17 See, e.g ., Tunget v. Commonwealth , 198 S.W.2d 785 , 786 (Ky. 1946) (“ Was it reversible error to keep appellant in handcuffs during the trial? As a rule, we would condemn such a practice. A court would hardly be justified in permitting this to be done in one murder case out of an average hundred coming to trial ; Marion v. Commonwealth , 108 S.W.2d 721 , 723 (Ky. 1937 ) ) ( “ It is a common

- law right of a person being tried for the commission of a crime to be free from all manner of shackles or bonds, whether of hands or feet, when in court in the presence of the jury, unless7

United States Supreme Court recognized that the generally accepted prohibition against shackling among the states was grounded in the right to a fair trial, a fundamental liberty secured by the Fourteenth Amendment, as a practice that “undermines the fairness of the fact

- finding process.” 18
In Estelle v. William s , the United States Supreme Court ruled that a trial court that compels a criminal defendant to appear before the jury in prison clothing threatens the defendant’s fundamental right to a fair trial. 19 In an effort to protect the presumption of innocence du ring the course of a criminal
trial , a basic component of the right to a fair trial guaranteed by the Due
Process Clause of the Fourteenth Amendment, the Court directed trial courts to “be alert to factors that may undermine the fairness of the fact

- findin g process.” 20 The Court further directed that, in analyzing the impact of a particular trial event on the judgment of the jury, courts are to apply “close judicial scrutiny” and “must do the best they can to evaluate the likely effects of a particular proce dure, based on reason, principle, and common human experience.” 21 T he Court reiterated , however, that not all federal constitutional errors require automatic reversal of the challenged conviction. 22 For example,

in exceptional cases where there is evident danger of his escape or in order to protect others from an attack by the prisoner. ”).

18 Estelle , 425 U.S. at 503.

19 Id . at 504

– 05

. 20 Id

. at 502 (citing Coffin v. United States , 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481, 491 (1895)).

21 Id . at 504.

22 Id

. at 507 ( explaining that not all constitutional violations require reversal because there could be some errors that are so “‘unimportant and insignificant’” considering the setting of a particular case) (quoting Chapman v. California, 386 U.S.8

the Estelle Court indicated that even in cir cumstances where a particular practice poses an inherent threat to a defendant’s right to a fair trial, the practice may still be constitutional where it serves some “essential state
interest.” 23 Following Estelle , the Supreme Court i n Holbrook v. Flynn r elied on the principles in Estelle to determine whether the defendant’s right to a fair trial was violated when the trial court, citing security concerns, permitted several
uniformed officers to be present during trial

. 24 T he Court explained that certain
pr actices require “‘close judicial scrutiny[,]’” because the practice had been
found “to pose such a threat to the ‘fairness of the factfinding process ,’ ” 25 but “this close scrutiny of inherently prejudicial practices” is not always fatal : 26
Central to the ri ght to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of offic ial suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” 27 This does not mean, however, that every practice tending to single out the

18, 21

– 22 , 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 709 (1967)). For example, the Estelle Court discussed a case that upheld a conviction where the defendant was tried in jail clothes for crimes he committed while in prison because it found that “‘no prejudice can result from seeing that which is already known.’” Id . (quoting United States ex rel. Stahl v. Henderson , 472 F.2d 556 (5th Cir. 1973 ) )

.

23 Id . at 505.

24 475 U.S 560 , 562

– 67 , 106 S.Ct. 1340 , 1342

– 45, 89 L.Ed.2d 525 (1986)

. 25 Id . at 5 68 ( quoting Estelle , 425 U.S. at 503

– 50 5 ).

26 Id

. ( discussing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970 ), wherein “the Court emphasized that a defendant may be prejudiced if he appears before the jury bound and gagged[,]” but nonetheless held that th e practice may be reasonable in certain situations ) )

.

27 Id . at 567 (quoting Taylor v. Kentucky , 436 U.S. 478, 485, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468 (1978)).9

accused from everyone else in the courtroom must be struck down.

. . . When defense counsel vigorously represents his client's interests and the trial judge assiduously works to impress jurors with the need to presume the defendant's innocence, we have trusted that a fair result can be obtained

. 28
T he Court ultimately ruled that having uniformed officers present during trial does not always pose a threat to the f airness of the factfinding process because, unlike in cases where a defendant is shackled while appearing before the jury , there are a variety of way s in which officers can be deployed that do not prejudice the defendant , and a jury could draw a wider range of inferences from having officers present that do not involve speculations regarding any danger posed by the defendant. 29 Accordingly, the Court opted to adopt a case

by

- c ase approach where it considers whether the officers present in a specific

case were so inherently prejudicial that the defendant was denied his constitutional right s . 30 Finally, in Deck v. Missouri , the Supreme Court considered w hether the defendant’s due process rights were violated when the defendant was visibly shackled during the penalty phase of a trial. 31 The Court explained that the rule prohibiting a trial court from shackling a defendant during the guilt phase of a jury tr ial serves to protect three fundamental legal principles : 32 (1) “[t] he criminal process presumes that the defendant is innocent until proved

28 Id

. 29 Id

. 30 Id

. 31 Deck , 544 U.S. at 624.

32 Id. at 631

– 32.10

guilty ; ” 33 (2) the Constitution provides an accused with a right to counsel in order to help him secure a meaningfu l defense ; 34 and (3) the trial judge “ must seek to maintain a judicial process that is a dignified process[,] . . . which includes the respectful treatment of defendants [and] reflects the importance of
the matter at issue [.] ” 35 The Court explained that th e first principle is similarly undermined by the shackling practice during the penalty phase because it still suggests to the jury “that court authorities consider the offender a danger to the community,” which is “often a statutory aggravator and nearly a lways a relevant factor” to be considered by the jury. 36 Even though the presumption no longer applies during the penalty phase, the Court explained that this suggestion could still influence the jury while it was making the equally important decision betwe en life and death by undermining the jury’s ability to weigh accurately all relevant
considerations

. 37 The second principle is diminished by the shackling practice during the penalty phase because it equally interferes with the defendant’s “ability to communicate’ with his lawyer” and “participate in his own

33 Id

. 630 (citing Coffin v. United States , 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) ).

34 Id

. 631 (citing C ONST

. A MEND . XI; Gideon v. Wainwright , 372 U.S. 335, 340

– 41, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ).

35 Id

. (quoting Allen, 397 U.S. at 344, for the proposition that the use of shackles at trial “‘affront[s]’” the “‘dignity and decorum of judicial proceedings that the judge is seeking to uphold[]’”).

36 Id

. 632

– 33

. 37 Id

.11

defense.” 38 Finally, the third fundamental principle is u ndermined by the shackling practice in the penalty phase because it “ ‘a ffront[s] . . . [the] d ignity and decorum of judicial proceedings that the judge is seeking to uphold .’ ” 39 Based on these findings, the Deck Court ruled t hat “th e Fifth and Fourteenth Amendments prohibit the use of visible physical restraints [during either the guilt or penalty phase] visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. ” 40 Furthermore, the court reaffirmed that
where such violation is found , the defend ant is entitled a reversal unless the
state satisfies its b urden to pro ve “beyond a reasonable doubt” that the erroneous shackling did not influence the verdict. 41 The Court reversed Deck’s
sentence , holding that the trial court abused its discretion because it failed to
indicate any “special circumstances” were present that suggested a need to shackle Deck during the sentencing phas e, and t o explain why it chose not to shackle Deck in a way that the jury could not see. 42 In line with its own precedent, Kentucky formally adopted and implemented the fundamental principles established in Estelle , Holbrook and

38 Id . at 631

– 32 (citing Allen , 397 U.S. at 344 ).

39 Id . ( quoting Allen , 3 97 U.S. at 344).

40 Id . at 629

– 30. The Deck Court explained that its prior decisions in Estelle and Allen “gave voice to a principle deeply embedded in the law” that it is inherently prejudicial to compel a defendant during the guilt phase of his trial to appear before the jury wearing shackles. 544 U.S. at 629.

41 Id . at 635 (internal quotation marks and citations omitted).

42 Id . at 634

– 3512

Deck . RCr 8.28(5) codifies the rules announced in those cases, providing that “[d]uring his o r her appearance in court before a jury the defendant shall not be required to wear the distinctive clothing of a prisoner. Except for good cause shown the judge shall not permit the defendant to be seen by the jury in shackles or other devices for physi cal restraint.” This Court has also applied these principles in several cases. 43
In Estep v. Commonwealth , this Court rejected the defendant’s challenge to the trial court’s decision to admit a photograph that showed the defendant wearing handcuffs at the time of his arrest. 44 Because Estep came before this Court in 1983, the C ourt did not have the benefit of the Supreme Court’s 1986
and 2005 decisions in Holbrook and Deck to aid in deciding this case. Instead,
the Estep court was guided only by the Supreme Court’s directives in Estelle

43 This Co urt in Scrivener v. Commonwealth applied the rule articulated in Estelle to hold that the defendant’s conviction must be reversed, despite “overwhelming evidence of appellant's guilt,” because the trial court failed to grant the defendant’s motion for a co ntinuance so that he could be tried in street clothing rather than prison clothing. 539 S.W.2d 291, 292 (Ky. 1976). In Commonwealth v. Conley , this court also emphasized the responsibility of the trial court in these cases to not restrain the defendant by handcuffs or shackles unless and until it determines that restraint of the defendant is necessary to serve the state’s essential interests in preventing the defendant’s escape and protecting the safety of those in the courtroom. 959 S.W.2d 77

– 78 . The Conley court held that the trial court did not abuse its discretion in ruling that the defendant be kept in shackles during trial because the defendant had a demonstrated history of fleeing state custody , the trial court only so ruled after considering re levant case law and available alternatives for courtroom security, and the trial court examined and issued several admonition to prospective jurors regarding the presumption of innocence and its relationship to the shackles placed on the defendant. Id . at 78

– 79. Furthermore, in Stacy v. Commonwealth , this Court affirmed a defendant’s conviction even though the trial court engaged in an “intrinsically prejudicial” practice by requiring the defendant’s witnesses to testify before the jury while handcuffed and dressed in prison clothing. 396 S.W.3d 78 7, 800

– 03 (Ky. 2013).

44 663 S.W.2d at 216.13

that courts must “be alert to factors that may undermine the fairness of the
fact

- finding process , ” 45 and must draw on their own reason, principle , and common human experience ” to determine th e “likely effects of a particular procedure.” 46
In Estep , the C ourt did not provide a detailed discussion of defendant’s challenge to the trial court’s decision, nor did it discuss or cite to the Supreme
Court’s decision in Estelle in considering the chall enged practice

. But the C ourt clearly followed the holding in Estelle when it explained that it could not find that the trial court’s decision prejudiced Estep because “[t]he trial court noted that the pictures were being offered for the purpose of showing how Estep looked the night of his arrest[ , ] . . . that testimony had been previously given that Estep was handcuffed as he was arrested, [and the trial court] admonished the jury that the handcuffs had no significance . . . .” 47 Similarly, i n Shegog v. Co mmonwealth , this Court held that the defendant was not entitled to reversal of his conviction based on the allegation that several potential jurors watched as he was transported from the jail to the
courthouse in handcuffs. 48 We reaffirmed that “the inadver tent viewing of the

45 425 U.S. at 502.

46 Id . at 504.

47 663 S.W.2d at 21 6 . The C ourt did not, however, follow the Supreme Court’s lead in Estelle by considering, for example, the approaches taken by other courts that had considered the constitutionality of the practice that was challenged in Estep , or whether the challenged practice usually operated only against those who cannot afford to make bail to be released pending trial. See Estelle , 425 U.S. at 503

– 06.

48 142 S.W.3d at 108.14

defendant in handcuffs for the sole purpose of being taken to or from the courtroom is not automatically reversible error

. ” 49
Like the Estep court, the Shegog court did not provide a detailed discussion of the applicable principles under Estelle , Holbrook , and Deck . I t is clear, however, that the court did engage in the required analysis before concluding that Shegog was not entitled to a reversal of his convic tion. The Shegog c ourt noted that the trial court fulfilled its responsibility to consider whether the practice was inherently prejudicial when it indicated that “the inadvertent viewing of the defendant in handcuffs” may constitute an “inherently prejudic ial” trial error in some circumstances , but that it could not
find that the inadvertent viewing in this case prejudiced Shegog since defense
counsel did not question the potential jurors about it in voir dire

. 50 In support of this finding, this Court also o bserved that when the trial court deni ed the request for a continuance it relied on the sentiments expressed in Davis v.
Commonwealth that “‘it would be impossible as a practical matter to conduct a trial without the jury seeing some sign that the defenda nt [is] not entirely free to come and go as [he] please[s].’” 51

49 Id . at 108

– 09 (citing Moss v. Commonwealth , 949 S.W.2d 579, 582

– 83 (Ky. 1997)).

50 Id

. at 109.

51 Id . (quoting Davis v. Commonwealth , 899 S.W.2d 487, 491 (Ky. 1995), ov erruled on other grounds in Merriweather v. Commonwealth , 99 S.W.3d 448 (Ky. 2003)).15

Finally, in Bryan v. Commonwealth , an unpublished opinion from 2017 , we rejected the defendant’s challenge to the trial court’s decision to admit a video of the defendant’s police interview , which d epicted Bryan wearing a prison jumpsuit and handcuffs

. 52 Like in Estep , the Bryan court did not engage in the type of analysis that was seen in Holbrook and Deck . Instead, in Bryan

we simply stated, citing only to our decision in Estep , that we co uld not find that the trial court abused its discretion in admitting the video because “[w]e have previously affirmed convictions where the jury witnessed the defendant in
either shackles or handcuffs[ , and] [t]he error, if any, was harmless.” 53
Unlike in S hegog and Estep , it is unclear whether the Court in Bryan
relied on the directives provided by the Supreme Court to hold that the trial court did not err in admitting the video of the defendant’s police interview and any error that did occur was harmless. But there is also no indication in the opinion that the defendant objected at trial to allowing the jury to view the video of his interview with police. As such, the Bryan court did not err in summarily concluding that trial court did not abuse its discret ion in admitting
the video based on this Court’s decision in Estep

. C. The Applicable Standard It is fair to say that the cases discussed above establish that trial courts
must conduct a certain analysis in cases where a defendant challenges a trial event claiming the event undermines the jury’s ability to decide the case fairly

.

52 2017 WL 1102825, at * 6

. 53 Id

.16

But it is also fair to say that this Court has never articulated the required analysis since the Supreme Court decided Estelle , Holbrook , and Deck

. We take the oppor tunity now. First, when a defendant objects to a specific trial event, the trial court, in
the exercise of its discretion, has a responsibility under the Fourteenth Amendment to consider whether the practice is “inherently prejudicial.” 54 As the Court exp lained in Holbrook , a practice is generally found to be “inherently prejudicial” when it threatens the fairness of the factfinding process by undermining the defendant’s right “ ‘ to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. ’ ” 55
I n carrying out this responsibility, the trial court must engage in a thorough analysis and “closely” con sider any factors relevant in the specific

54 See Deck , 544 U.S. at 630 (discussing the Court’s prior decision to determine whether shackling the defendant during the penalty phase of the trial posed a similar risk to the defendant’s constitutional right as the practice does when employed during the guilt phase of the trial); Holbrook , 475 U.S. at 567 (holding that the uniformed officers present during the defendant’s trial were not “inherently prejudicial” based on the finding that the officers in the case did not pose the same risk to the defendant’s constitutional rights as routinely shackling the defendant when he appears before the jury); Estelle , 425 U.S. at 504 (justifying it s holding that compelling a criminal defendant to appear before the jury in prison clothing by citing to several other courts’ decisions that have prohibited the practice based on the threat the practice poses to the presumption of innocence entitled to al l criminal defendants); Stacy , 396 S.W.3d at 800

– 01 (stating that to determine whether the defendant’s fair trial rights were violated by the trial court allowing the defendant’s incarcerated witnesses to testify while wearing shackles and prison attire, t he Court must determine first whether the practice is “intrinsically prejudicial . . . , and if so whether sufficient state interests exist to justify its existence[]”).

55 Holbrook , 475 U.S. at 567 (quoting Taylor , 436 U.S. at 485).17

case , 56 including : the likelihood that the challenged event could be interpreted by the jury as indicating that the defendant has already been adjudged to be particularly dangerous or culpable ; 57 the reasoning behind other courts’
decision s when faced with similar cases ; 58 and the likelihood that the event would normally operate to the disadvantage only to those defendants who are unable to post bond to be released pending trial. 59 If the trial cour t finds that the challenged event is “inherently prejudicial , ” or prejudicial based on the circumstances of a particular case, the trial court may only exercise its

56 See Estelle , 425 U.S. at 50 2

– 04 (directing trial courts to “be alert to factors that may undermine the fairness of the fact

- finding process[,]” and explaining that courts are to apply “close judicial scrutiny” when analyzing the impact of a particular trial event on the ju dgment of the jury and “do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience”) (citing Coffin , 156 U.S. at 453).

57 See Holbrook , 475 U.S. at 569 (finding that the jury could h ave draw n a wider range of inferences from having the uniformed officers present during Holbrook’s trial that many of which do not all involve speculations regarding any danger posed by Holbrook).

58 See Deck , 544 U.S. at 630 (explaining that the Court’s prior decisions in Estelle and Holbrook indicated that the primary motivation behind the guilt

- phase constitutional rule is to protect “three fundamental legal principles” that are undermined or threatened by practices such as shackling the defendant when he appears before the jury); Holbrook , 475 U.S. at 567 (discussing the Court’s prior decisions in Estelle , 425 U.S. 501, and Allen , 397 U.S. 337, to illustrate how the practice challenged in this case differed from the practices deemed to be constitutiona lly prohibited absent a showing that the practice is necessary to serve an essential state interest); Estelle , 425 U.S. at 504 (discussing several lower federal court cases already confronted the practice at issue in this case and prohibited or criticized it).

59 See Holbrook , 475 U.S. at 567; Estelle , 425 U.S. at 504

– 05. Recall that the Estelle Court established that “[t]o impose [a] condition on one category of defendants, over objection, would be repugnant to the concept of equal justice embodied in the Fourteenth Amendment.” Estelle, 425 U.S. at 504

– 05.18

discretion to allow the proposed event if it finds that the event is nonetheless justified by some identifiable and essential state interest. 60
In determining whether the challenged event is justified by an essential state interest, the trial court is directed to engage in a thorough analysis of any
factors that are rel evant in the particular case. For example, the Supreme Court and this Court have considered factors such as: (1) the merits of the
asserted state interest ; 61 (2) the potential threat posed by the challenged event to the defendant’s constitutional rights ; 62 a nd (3) the availability of alternatives

60 See Deck , 544 U.S. at 634

– 35 (holding that the trial court erred in shackling the defendant during the penalty phase of the trial because the trial court failed to indicate that it considered any “special circumstances” that suggested a need to shackle Deck); Holbrook , 475 U.S. at 571

– 72 (exp laining that even if the court’s decision allow the four uniformed police officers to be present during Holbrook’s trial did prejudice the defendant, “the State's need to maintain custody over defendants who had been denied bail after an individualized det ermination that their presence at trial could not otherwise be ensured” justified the trial court’s decision); Estelle , 425 U.S. at 505 (finding that no state interest was served by requiring a defendant to appear at trial in jail clothing);

61 See, e.g. , Holbrook , 475 U.S. at 571

– 72 (explaining that even if the court’s decision to allow the four uniformed police officers to be present during Holbrook’s trial did prejudice the defendant, “the State's need to maintain custody over defendants who had been de nied bail after an individualized determination that their presence at trial could not otherwise be ensured” justified the trial court’s decision) ; Conley , 959 S.W.2d at 78

– 79 (holding that the trial court did not abuse its discretion in ruling that the de fendant be kept in shackles during trial given that the defendant had a demonstrated history of fleeing state custody ).

62 See, e.g ., Holbrook , 475 U.S. at 567 (ruling that having uniformed officers present during trial does not always pose a threat to the fairness of the factfinding process because, unlike in cases where a defendant is shackled while appearing before the jury, there are a variety of ways in which officers can be deployed by trial courts that do not prejudice the defendant and a jury could draw a wider range of inferences from having officers present that do not all involve speculations regarding any danger posed by the defendant); Estelle, 425 U.S. at 502 (explaining that the presumption of innocence is a basic component of the right to a f air trial guaranteed by the Due Process Clause of the Fourteenth Amendment, and to protect this fundamental right, the Court directed trial courts to “be alert to factors that may undermine the fairness of the fact

- finding process[]”) (internal citations o mitted).19

that could minimize the risk posed to the defendant’s rights while still acting to
serve the asserted state interest. 63 As to the last factor, this Court has made clear that a trial court will usually be able to min imize any risk posed to the defendant’s right by admonishing the jury that the trial practice is not to be considered in determining guilt. 64 Finally, i n cases where an “inherently prejudicial” trial event that does
not serve an essential state interest i s implemented, prejudice is presumed on appellate review of the trial court’s decision, 65 and the defendant is entitled to reversal of his conviction unless the defendant did not challenge the event

63 See , e.g., Deck, 544 U.S. at 634

– 35 (holding that the trial court erred in shackling the defendant during the penalty phase of the trial in part because the trial court failed to explain why it chose not to shackle Deck in a way that the jury could not see) ; Conley , 959 S.W.2d at 78

– 79 (holding that the trial court did not abuse its discretion in ruling that the defendant be kept in shackles during trial given that the defendant had a demonstrated history of fleeing state custody, the trial cou rt only so ruled after considering relevant case law and available alternatives for courtroom security, and the trial court examined and issued several admonition s to prospective jurors regarding the presumption of innocence and its relationship to the sha ckles placed on the defendant ).

64 See, e.g ., Estep v. Commonwealth , 663 S.W.2d 213, 215 (Ky. 1983) (explaining that it could not find that the trial court’s decision to admit a photograph even though it depicted the defendant, at the time of his arrest, w earing handcuffs prejudiced Estep because, among other things, the trial court “admonished the jury that the handcuffs had no significance” in determining Estep’s guilt).

65 See, e.g., Deck, 544 U.S. at 635 (concluding that where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation[,]” as it becomes the burden of the State in those circumstances to prove “beyond a reasonable doubt” that the erroneous shackling of the defendant did not impact the ultimate verdict).20

before the trial court, 66 or unless the state can affirmatively show beyond a
reasonable doubt that the event did not prejudice the defendant. 67
D. The Standard as Applied in Similar Cases A standard like the one articulated above has been applied in cases where a jury viewed a cri minal defendant in handcuffs or jail garb in

- person or in a photograph. While neither this Court nor the United States Supreme Court has had the opportunity to analyze a videotaped presentation like the one in the present case, 68 other state appellate cour ts have considered cases that presented similar facts.
In State v. Taylor

, for example, the Tennessee Supreme Court considered whether the trial court erred in allowing the jury to view a videotape in which the defendant appear ed in custody and dressed in jail attire. 69 The challenged
video in Taylor was recorded while the S tate was working with a jail informant

66 See, e.g., Estelle, 425 U.S. at 510

– 13 (concluding that Williams was not entitled to reversal of his conviction because it was undisputed that Williams did not object before the trial court to being tried in jail clothing, the Court could not conclude that Williams was compelled to stand trial in jail clothing in violation of the Fourteenth Amendment).

67 See, e.g., Deck , 544 U.S. at 635 (concluding that where a court, without adequate justification, orders the defendant to wear visible shackles before the jury, prejudice is presumed, and reversal is required unless the State proves “beyond a reasonable doubt” that the erroneous shackling of the defendant did not impact the ultimate verdict).

68 This Court in Bryant was presented with similar facts, and it indicated that it would be reluctant to find any error in admitting the video based on this Court’s decision in Estep. 2015

– SC

– 000467

– MR, at *6. The case at bar is different because Deal did preserve his objection to admitting the challenged video depicting him in jail garb and shackles.

69 240 S.W.3d 789 (Tn. 2007).21

who claimed that the defendant had previously confessed to the crimes. 70 The
Tennessee Supreme Court held that the trial court did not err in admitting the
video because it did not result in a violation of the defendant’s constitutional rights. 71

In its discussion of the defendant’s claim that the video violated his constitutional rights, the Tennessee Sup reme Court explained that the facts relied on by the Supreme Court in Estelle are distinguishable from Taylor’s

case because: the defendant was not tried while dressed in jail attire; the jury only saw a brief videotape of defendant wearing jail attire; th e video was not the cause of the potential prejudice arising from discovering that the defendant was jailed because the jury already knew before viewing the videotape that the
defendant was in jail based on the informant’s testimony; and because the trial took place over 3 days, and the video was only seven

- minutes long

. 72 While it “caution[ed] trial courts that unnecessary displays of a criminal defendant bearing the badges of custody should be avoided,” the court ultimately held

70 Id . at 793.

71 Id . at 794

– 97. The defendant in Taylor also argued that the video viol ated his constitutional rights because the State had an audio version of his conversation with the informant, but the court declined to consider this factor in its analysis because it agreed with the State’s argument that the defendant had waived this argu ment by fail ing to include the audiotape in the appellate record. Id . at 795 (citing State v. Ballard , 855 S.W.2d 557, 560

– 61 (Tenn. 1993)).

72 Id . at 795

– 96 . The Tennessee Supreme Court explained that the Supreme Court in Estelle “ recognized that ‘ the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that

.

. . an unacceptable risk is present ed of impermissible factors coming into play. ’ ” Id

. (quoting Estelle , 425 U.S. at 504

– 05, 512 ).22

that “[u]nder these circumstances, . . . the brief videotape . . . did not serve as a ‘constant reminder’ to the jury that the Defendant had been previously jailed and it did not corrupt the presumption of innocence on which the jury was properly instructed.” 73

The Ten nessee Supreme Court in Taylor also explained that its holding was supported by several similar cases that were decided by courts in other
states. 74 In sum, like the Supreme Court in Holbrook , the Tennessee Supreme Court, as well as the state court decision s that it cited, concluded in the first instance that admitting video evidence depicting a defendant in jail custody is not “inherently prejudicial ” under all circumstances. And we do not dis agree with that point

.
C ommon sense suggests that the impact of allowing a brief videotaped presentation to the jury depicting the defendant in jail attire or shackles is not
as d amaging as requiring a defendant to appear that way in person before the jury . But we remain convince d that videos of the defendant “bearing badges of

73 Id

. at 796

– 97.

74 Id . at 797 (discussing State v. Schaller , 199 Wis.2d 23, 544 N.W.2d 247 (App.1995) ) , State v. Atwood , 171 Ariz. 576, 832 P.2d 593, 645 (1992), overruled on other grounds by State v. Nordstrom , 200 Ariz. 229, 25 P.3d 717, 729 (2001), and Anderson v. State , 574 So.2d 87 (Fla. 1991)). For example, the Tennessee Supreme Court explained that the Supreme Court of Florida “rejected [a] defendant's contention that he had been denied a fair trial because the jury was shown a one and one

- half minute long videotaped news report that briefly depicted the defendant in jail clothes.” Id . (citing Anders on , 574 So.2d at 93

– 94 (Fla. 1991)). The Supreme Court of Florida concluded that “ ‘[u]nder the circumstances, there was no “constant reminder of the accused's condition” to support the conclusion that [the defendant] was denied a fair trial.’” Id . (quoting Anderson, 574 So.2d at 93

- 94 (quoting Estelle , 425 U.S. at 504, 96 S.Ct. 1691))).23

custody” pose a threat to the defendant’s right to a fair trial because it tends to suggest to the jury that some official determination has already been made that
the defendant needs to be restrained and separated from society. This is especially true when, as in Deal’s case, the jury was able to see and hear testimony to the effect that the jail interview was recorded months after the
defendant was arrested on the underlying charges.
E. The Standard as Ap plied to Deal’s Case Applying to Deal’s case the standards discussed above, we conclude that
Deal is entitled to reversal of his conviction because the video was prejudicial
based on specific circumstances of Deal’s case , the trial court abused its
discre tion in admitting the video without engaging in the required analysis, and the Commonwealth failed to prove beyond a reasonable doubt that this error did not influence the jury’s verdict

. With respect to the first step of the analysis, the trial court here failed to consider on the record whether playing this video was inherently prejudicial . In a conclusory way, it dismissed Deal’s requests to require the Commonwealth to present the audio version of his interview , or, at a minimum, offer some explanat ion for using the video instead of the audio . The trial court state d that it was expected

— presumably saying unexpected by the average juror

— that Deal would be in custody because he was accused of murder. The trial court’s statement, “that’s just routinely done, almost everybody’s in custody, eventually, especially after a murder investigation , ” suggests that the trial court was echoing words from Davis that “it would be impossible as a practical24

matter to conduct a trial without the jury seeing some sign that the defendant [is] not entirely free to come and go as [he] please[s].” 75 But the facts of the present case are that the challenged video was a production by the principal investigating officer in testimony during the Commonwealth’s case

- in

- chief. The present facts are fundamentally different from Davis , a case in which jurors’ inadvertently viewed the defendant in handcuffs as he entered the courtroom
at the commencement of trial. 76 As indicated above, we believe that Deal’s video, as it was present ed to the jury below, was prejudicial. U nlike the defendant in Taylor, Deal was depicted in the video wearing both jail clothing and shackles , 77 and the video was 35 minutes, not merely 7

. Also, the video of Deal was recorded two months

after Deal was arrested on the present charge , and this fact was apparent to the jury because the date stamp appears prominently at the bottom of the
video. With respect to the second step of the analysis, despite the circumstances present in Deal’s case, the trial cour t further failed to consider whether Deal’s video would nonetheless be prejudicial. There certainly could have been ways to minimize this risk, such as admitting the audio version of

75 Davis , 899 S.W.2d at 491.

76 Id . at 490.

77 Recall that the Supreme Court in Deck explained that its prior decisions in Estelle and Illinois v. Allen, 397 U.S. 337, 343

– 44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) “gave voice to a principle deeply rooted in the law” that it is inherently prejudicial to compel a defendant during the guilt phase of his trial to appear before the jury wearing shackles. ” 544 U.S. at 629.25

the same interview or admonishing the jury that Deal’s appearance in the video
should not be considered in determining guilt. 78 But there appears no indication of the trial court’s consideration of such alternatives or safeguards. And even if it had, the trial court should have then required the
Commonwe alth to explain how the video serves an essential state interest, which could have been accomplished by simply requiring the Commonwealth to explain how the audio version would not effectively present the intended evidence and why the evidence in video for mat was crucial for proving the
Commonwealth’s case. Finally, as we consider the arguments before us, we conclude that the Commonwealth failed to argue the existence of proof beyond a reasonable
doubt that the trial court’s decision to allow the video did not prejudice Deal. The Commonwealth argues that any error committed by the trial court in admitting the video or failing to give an admonition was harmless because

78 See, e.g ., Estep , 663 S.W.2d at 215 (explaining that it could not find that the trial court’s decision to admit a photograph even though it depicted the defendant, at the time of his arrest, wearing handcuffs prejudiced Estep because, among other things, the trial court “admonished the jury that the handcuffs had no significance” in determining Estep’s guilt). We agree with the Commonwealth and the Court of Appeals in this case that this Court has generally held that “ a defendant who wants the court to admonish the jury must ask for such relief; otherwise, his failure to request it will be treated as a waiver or as an element of trial strategy. ” Hall v. Com monwealth ., 817 S.W.2d 228, 229 (Ky. 1991), overruled on other grounds in Com monwealth . v. Ramsey , 920 S.W.2d 5 26 (Ky. 1996). However, we do not agree with the insinuation that by failing to request a jury admonition regarding what purpose the video is to serve in determining guilt Deal waived any argument relating to the trial court’s failure to issue such an admo nition. Deal’s failure to request an appropriate admonition when it objected to admitting the video of his police interview has no bearing on the trial court’s initial failure to properly analyze whether Deal’s constitutional rights were threatened by admi tting the video.26

there is “no substantial possibility that the result would have been different if
the Co mmonwealth had played the audio recording of the interview.” In support of this argument, the Commonwealth makes the following assertions: (1) the investigating detective had already testified about Deal’s arrest, so the jury already knew th at Deal had be en taken into custody; (2) the video of Deal’s police interview was consistent with Deal’s defense; (3) and the video was only a “short portion of a multi

- day trial” in which Deal was personally present in street clothes and maintaining a tidy appearance. In response, Deal argues that the Commonwealth could not prove that the challenged video did not impact the verdict because the evidence against Deal

w as not overwhelming.

While we concede that the ass ertions made by the Commonwealth in support of its argument that the video did not prejudice Deal are relevant, 79 t he
Commonwealth has not explained how these assertions prove beyond a
reasonable doubt that the video did not prejudice Deal by influencing t he jury’s
verdict

. Furthermore, t he Commonwealth fails to discuss any relevant case

79 The Tennessee Supreme Court made similar assertions in support of its holding in Taylor . 240 S.W.3d at 795

– 97 (explaining that, because the defendant was not tried while dressed in jail attire; the jury only saw a brief videotape of def endant wearing jail attire; the video was not the cause of the potential prejudice arising from discovering that the defendant was jailed because the jury already knew before viewing the videotape that the defendant was in jail based on the informant’s tes timony; and because the trial took place over 3 days, and the video was only seven

- minutes long, the facts relied on by the Supreme Court in Estelle are distinguishable from Taylor’s case, and holding that “[u]nder these circumstances, . . . the brief vide otape . . . did not serve as a ‘constant reminder’ to the jury that the Defendant had been previously jailed and it did not corrupt the presumption of innocence on which the jury was properly instructed”).27

that supports its assertion that Deal was not prejudiced. Accordingly, we
cannot conclude that the Commonwealth satisfied its burden of demonstrating beyond a reasonable doubt that the practice did not impact the verdict. In sum, we conclude that while not “inherently prejudicial,” the video prejudiced Deal and the trial court failed to take any of the required steps to determine if the prejudicial nature of the video was justified by an essential state interest, or whether the risk posed to Deal’s constitutional rights could otherwise be minimized by some available alternative. On remand, if the Commonwealth again moves to allow the jury to view the videotape of Deal’s i nterview in the same format, the trial court should require the Commonwealth to prove that the video is necessary to serve an essential state interest. If, in the exercise of its discretion, the trial court believes the video is necessary to serve the asse rted state interest and that interest could not be served by any available alternatives, it is within the trial
court ’ s discretion to admit the video. But the trial court must still consider whether any additional steps should be taken to minimize the risk posed to Deal’s constitutional rights, which could include issuing an appropriate admonition to the jury.
III. CONCLUSION The judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
All sitting. All concur.28

COUNSEL FOR APPELLANT : Euva D. May Leo Gerard Smith Department of Public Advocacy

COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky Emily Bedelle Lucas Office of the Attorney General