RENDERED: OCTOBER 2, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0533-MR

JIMMY DEAN WILLIAMS APPELLANT

APPEAL FROM KENTON CIRCUIT COURT

v. HONORABLE PATRICIA M. SUMME, JUDGE

ACTION NO. 18-CR-00266

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

CALDWELL, JUDGE: Jimmy Dean Williams appeals from a judgment of the 

Kenton Circuit Court sentencing him to three concurrent twelve-year sentences for 

robbery. Williams argues the Commonwealth committed prosecutorial misconduct 

by: a) taking no action when a detective’s testimony differed materially at a 

suppression hearing and at trial, and b) making improper statements during closing 
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arguments. We agree with Williams that the Commonwealth failed to act in 

response to the detective’s changing testimony, but Williams did not adequately 

preserve the issue, so precedent prevents Williams from receiving relief on appeal. 

We also affirm as to the challenged closing argument statements. 

RELEVANT FACTUAL AND PROCEDURAL HISTORY

In November 2017, Jonah Killion drove his vehicle to a gas station in 

Bellevue, Kentucky. Killion’s passengers, Devlin Carter and R.P. (a minor), spoke 

with a man they knew by the nickname of John Doe. After receiving a ride, Doe 

brandished a gun and took items like cell phones and a Michael Kors watch from 

Killion, Carter and R.P. After Doe fled, the three victims asked a man they 

encountered to call 9-1-1. Eventually, R.P. told the responding officer that the 

robber was John Doe, who used to live near him. R.P. called his mother to attempt 

to ascertain Doe’s identity; R.P.’s mother called Doe’s ex-girlfriend, who 

happened to be Carter’s aunt, who said Doe’s true name was Jimmy Williams. 

Detective Corey Warner was soon assigned the case. He checked area

pawnshops and learned Williams had recently pawned a Michael Kors watch. 

Warner interviewed Carter, who told Warner that Doe had dated his aunt. 

Ostensibly because Carter already knew Williams, Warner showed Carter a single 

photograph of Williams in lieu of a photo array and Carter identified Williams as 

the robber. Warner later interviewed R.P., who told Warner about being John 
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Doe’s former neighbor. Again, Warner showed R.P. a single photo of Williams 

and R.P. identified Williams as the robber. Warner then interviewed Killion, who 

apparently had no prior acquaintance with Williams. As will be discussed, 

Warner’s testimony about whether he showed any photos of Williams to Killion 

was wholly inconsistent. 

In March 2018, Williams was indicted for three counts of robbery in 

the first degree, one count each for Carter, R.P., and Killion. Later that month, the 

Commonwealth made available to Williams in discovery numerous items, 

including a DVD containing Warner’s interview with the victims. Thus, it is 

beyond serious dispute that both the Commonwealth and Williams knew, or 

certainly should have known, what occurred at the victim interviews long before

Williams filed a motion in November 2018 asking for “an Order prohibiting the 

Commonwealth, during the trial of this action, from admitting any evidence of 

identification which is unduly suggestive and unreliable.” The motion made no 

mention of Warner’s interview with Killion but asserted the identifications by 

Carter and R.P. were inherently suggestive because Warner had shown each only 

one photo. The Commonwealth’s written response asserted that “Killion stated [to 

Warner] he did not know the man who robbed them and was not shown any photos 

or asked to identify the subject.”
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In December 2018, the trial court conducted a hearing on Williams’

motion to suppress. The Commonwealth asked Warner whether Killion knew the 

person who had robbed him. Williams’ counsel objected on relevance grounds. In 

the ensuing discussion, the Commonwealth stated it believed the matter was 

relevant for, among other things, any in-court identification by Killion at trial and 

that it expected Warner to testify that he had not shown Killion a photo of

Williams and thus any subsequent in-court identification of Williams by Killion 

would not be tainted. 

After the court overruled Williams’ objection, Warner testified that 

Killion did not say he knew who had robbed him. The Commonwealth then 

directly asked Warner if he had shown any photographs to Killion, and Warner 

answered, “I did not.” When asked by the Commonwealth why he had not shown 

any photos to Killion, Warner explained that Killion—unlike R.P. and Carter—had 

stated he did not know the person who had robbed him, so Warner “didn’t feel it 

was necessary at that time to, uh, produce a photo or photo lineup to Mr. Killion.” 

Hammering the point home, the Commonwealth again asked if Warner had 

showed Killion a photo of Williams “at any point” and Warner again responded, “I 

did not.” Williams’ attorney did not explore on cross-examination whether Warner 

had, in fact, shown Killion any photos, nor did Williams’ counsel play, or seek to 

introduce into evidence, the recording of Warner’s interview of Killion. 
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The suppression hearing recessed and resumed the following Monday, 

December 10, 2018. In her closing argument, after asserting that Warner should 

have shown more photos to the victims, Williams’ counsel said:

The other thing that the Commonwealth’s argument was 

is that he [Warner] never showed the pictures to each of 

the witnesses until he had already been given information 

that, um, they knew the suspect. And in fact in Jonah 

Killion’s case that’s not true. He received information 

that Jonah Killion in fact did not know the suspect, um, 

but had subsequently seen pictures of the suspect on 

Facebook and then he does actually show him a photo—

Jonah Killion just doesn’t positively identify that person 

as the assailant. So that is a large difference in what was 

testified to because the court was concerned with what 

the officer knew and could what the officer knew save 

the process used by the officer.

Counsel did not argue that Warner’s testimony was perjurious or raise 

prosecutorial misconduct as a basis for relief. 

In response, the Commonwealth did not address Warner’s testimony 

about not having shown Killion any photos. The court orally denied the motion to 

suppress, remarking that it did not know if Warner had shown a photo to Killion 

during the interview but that, essentially, that matter did not impact its ruling. 

Williams’ counsel asked if the court wanted the videos (presumably of the 

interviews between Warner and the victims) to be introduced into evidence, to 

which the trial court simply responded, “No.” Williams’ counsel did not seek to 

introduce the videos by avowal. 
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Two days later, the trial began. Because of his status as the lead 

police officer, Warner was present in the courtroom during the trial, including 

when Killion testified on the trial’s first day. When Killion identified Williams as 

the robber, Williams’ counsel objected, but did so by renewing the arguments 

raised in the motion to suppress, not based upon Warner’s allegedly false 

suppression hearing testimony. 

The next day, Warner testified. During direct examination, the 

Commonwealth oddly did not explore the issue of Warner’s having shown any 

photos to Killion, but on cross-examination Williams’ counsel asked Warner if he 

had shown Killion “the picture,” to which Warner ramblingly responded:

That is correct, after Mr. Killion had advised me prior to 

me showing the photo to him that he had seen the

Defendant Jimmy Williams on Mary Pence’s Facebook 

page. At that point he had already identified him to me 

by the Facebook page, so I didn’t see any harm in 

showing him that photo at that point.

When Williams’ counsel then asked if Killion had identified Williams 

from the photo shown to him by Warner, Warner replied that Killion was not 

completely sure the person in that photo was the robber but was sure that the 

person he had seen in a photo on Mary Pence’s Facebook page was the robber. 

Warner added that the person depicted in the Facebook photo was Williams. 

Williams did not seek to introduce the tape of Warner’s interview with Killion or 

seek any other affirmative relief based upon Warner’s testimony. Surprisingly, 
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Williams did not even ask Warner why he had testified differently at the 

suppression hearing, nor did the Commonwealth address Warner’s shifting 

testimony on redirect.

After the close of the evidence, the parties presented their guilt phase

closing arguments, with the Commonwealth arguing in relevant part as follows:

All of the interviews—all of the interviews—include 

them saying that this man [pointing towards Williams] 

robbed them. Now you heard [Williams’ counsel] point 

out specific parts and you’ve had us stop this trial while 

we walk up and, you know, talk about impeachment and 

whether or not you said this or that. Why isn’t the whole 

video [of the victims’ encounters with the officer who 

responded to the 9-1-1 call] shown? Because all the 

other parts [objection by Williams’ counsel] are 

consistent.

At an ensuing bench conference, Williams’ counsel asserted the Commonwealth 

was commenting on matters not in evidence. The Commonwealth responded to the 

general effect that it could ask the jury to conclude that portions of the videos 

which Williams had not highlighted as showing inconsistencies in the victims’

stories must therefore show consistency in those stories. The court overruled the 

objection, disjointedly stating that it was not sure the Commonwealth could say 

everything on the tapes not highlighted by the defense was consistent because the 

court did not know all that was said on those tapes. But the court ruled that the 

Commonwealth could comment that it noticed Williams had not played other parts 
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of the interviews, which would indicate those parts were consistent. The jury 

ultimately found Williams guilty of three counts of robbery, one for each victim.

The penalty phase then commenced. After the brief presentation of 

evidence (during which Williams was escorted from the courtroom due to 

becoming disruptive), the parties gave their closing arguments. During its closing 

argument, the Commonwealth made the following three statements, each of which 

Williams objected to:

1) I know we’re all kind of drained and it gives me no joy 

being up here and asking for you to send someone to 

prison. We’re not doing this because it’s something we 

wanna do. Rather, it’s something that we have to do. 

And we have to do that because of the verdict. But, 

really, we have to do that to protect the community. 

2) As far as the Defendant’s prior [conviction], yes, he 

was punished for that previous offense. That also does 

have a bearing here because part of what you’re being 

asked to assess is the danger to someone being returned 

to the community. 

3) This is someone who’s made that mistake before, 

didn’t seem to learn from it. Already got the ten years, 

didn’t change the behavior in any way. So I’m asking for 

a higher sentence than that [the ten-year minimum]. In 

terms of the Defendant’s outburst, I think it’s pretty clear 

to all of us that there’s no remorse here. This is not 

someone who thought about what he did and feels 

bad[ly]. And make no mistake, he has a [sic] absolute 

constitutional right to a trial. But, you know, someone is 

much less likely to be a danger in the future–
-9-

The trial court summarily overruled the first two objections and 

conducted a bench conference on the third, at which Williams’ counsel noted the 

Commonwealth had three times referenced the protection of the community. 

Before the Commonwealth had begun to respond, the trial court remarked that it 

believed such arguments were “fair game” in the penalty phase and told Williams’

counsel she could “take it up on appeal.” 

The jury recommended Williams receive a twelve-year sentence for 

each robbery conviction, to be served concurrently. After the trial court sentenced 

Williams in accordance with the jury’s recommendation, he filed this appeal.

ANALYSIS

A. Issues Presented

Williams raises two overarching issues. First, he contends he is 

entitled to a new trial due to prosecutorial misconduct related to Warner’s

inconsistent testimony and, second, that the Commonwealth committed 

prosecutorial misconduct in its closing arguments. 

B. Warner’s Shifting Testimony About His Interview with Killion

Williams now argues the suppression hearing was “[t]ainted by 

[p]erjured [t]estimony” (Appellant brief, p. 7) (emphasis omitted) and that the 

Commonwealth engaged in prosecutorial misconduct regarding Warner’s evolving 
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testimony.

1

 However, Williams did not affirmatively raise those issues in the trial

court. Williams did not use the video of the interview to impeach Warner at the 

suppression hearing about his testimony that he had not shown Killion a photo and 

did not impeach Warner at trial with his contrary suppression hearing testimony. 

Moreover, Williams did not allege perjury or prosecutorial misconduct as grounds 

for relief before the trial court. Consequently, Williams’ prosecutorial misconduct 

claims here are unpreserved.

Because the issue is unpreserved, we may only review it under the 

palpable error standard contained in Kentucky Rule of Criminal Procedure (RCr) 

10.26, which provides that “[a] palpable error which affects the substantial rights 

of a party may be considered . . . by an appellate court on appeal, even though 

insufficiently raised or preserved for review, and appropriate relief may be granted 

upon a determination that manifest injustice has resulted from the error.” 

However, our Supreme Court has held that “[a]bsent extreme circumstances 

amounting to a substantial miscarriage of justice, an appellate court will not engage 

in palpable error review pursuant to RCr 10.26 unless such a request is made and 

briefed by the appellant.” Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 

 

1

It is undeniable that Warner testified incorrectly at either the suppression hearing or trial. The 

issue is binary: either Warner showed Killion a photo or not. However, we decline to deem 

Warner’s testimony perjurious since that was not robustly explored in circuit court.
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2008). Incorrectly insisting the issue was properly preserved, Williams has not 

requested palpable error review. 

Here, even if we were to somehow engage in sua sponte palpable 

error review, we could not grant Williams relief because the facts here fall squarely 

within the holding of the Supreme Court in Meece v. Commonwealth, 348 S.W.3d 

627 (Ky. 2011). In Meece, the defendant’s ex-wife, Regina Meade, testified that 

she had no agreements with the Commonwealth, but pretrial discovery showed that 

to be incorrect. Id. at 678-79. Like the case at hand, Meade was not “ever really 

pressed by the defense on her answers,” the jury was never presented with 

information showing the falsity of her testimony, the trial court was never “asked 

to take judicial notice of the matter,” and the Commonwealth avoided the subject 

on redirect. Id. at 679. Meece was convicted and sentenced to death. On appeal, 

he raised the same argument Williams raises: “his Due Process rights were 

violated by the prosecution’s failure to correct Meade’s testimony,” and “her 

testimony was perjurous [sic] and this was known to the Commonwealth . . . .” Id.

at 676.

Our Supreme Court affirmed, concluding Meece could not receive 

appellate relief when his counsel knew the testimony at issue was false and yet 

failed to impeach the witness. Because the discussion is directly relevant—indeed 
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fully resolves—the issues raised by Williams about Warner’s testimony, we relate 

the following analysis from Meece: 

“In order to establish prosecutorial misconduct 

. . . , the defendant must show (1) the statement was 

actually false; (2) the statement was material; and (3) the 

prosecution knew it was false.’” Commonwealth v. 

Spaulding, 991 S.W.2d 651, 654 (Ky. 1999) (quoting 

United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.

1989)). “When [such] perjured testimony could ‘in any 

reasonable likelihood have affected the judgment of the 

jury,’ the knowing use by the prosecutor of perjured 

testimony results in a denial of due process under the 

Fourteenth Amendment and a new trial is required.” 

Commonwealth v. Spaulding, 991 S.W.2d 651, 655-56 

(Ky. 1999) (quoting Giglio v. United States, 405 U.S. 

150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).

This rule, however, does not apply if the 

defendant’s failure to impeach the witness’s allegedly 

false testimony is strategic or tactical. Jenkins v. Artuz,

294 F.3d 284, 295 (2d Cir. 2002). As was noted in 

Jenkins:

In United States v. Helmsley, . . . we 

concluded that the defendant was “not only 

. . . unable to establish a justifiable excuse 

for her failure to challenge . . . [the] 

testimony at trial, but it appear[ed] that her 

choice not to do so may have been 

deliberate.” 985 F.2d 1202, 1209 (2d Cir.

1993).

Jenkins, 294 F.3d at 295. Thus,

“[T]here is no violation of due 

process resulting from prosecutorial nondisclosure of false testimony if defense 

counsel is aware of it and fails to object.” 
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DeMarco v. United States, 928 F.2d 1074, 

1076 (11th Cir. 1991). “In [United States v.]

Decker, [543 F.2d 1102, 1105 (5th Cir.

1976),] we held that the Government can 

discharge its responsibility under Napue [v. 

Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 

L. Ed. 2d 1217 (1959)] and Giglio to correct 

false evidence by providing defense counsel 

with the correct information at a time when 

recall of the prevaricating witnesses and 

further exploration of their testimony is still 

possible.” United States v. Barham, 595 

F.2d 231, 243 n. 17 (5th Cir. 1979).

Beltran v. Cockrell, 294 F.3d 730, 736 (5th Cir. 2002). 

Therefore,

[T]he fact that the alleged statement 

was known to petitioner and his counsel 

during the trial compelled petitioner to raise 

this issue then or not at all. When a 

criminal defendant, during his trial, has 

reason to believe that perjured testimony 

was employed by the prosecution, he must 

impeach the testimony at the trial, and 

“cannot have it both ways. He cannot 

withhold the evidence, gambling on an 

acquittal without it, and then later, after the 

gamble fails, present such withheld evidence 

in a subsequent proceeding.”

Evans v. United States, 408 F.2d 369, 370 (7th Cir. 1969) 

(quoting Green v. United States, 256 F.2d 483, 484 (1st 

Cir. 1958)); See also Decker v. United States, 378 F.2d 

245, 251 (6th Cir. 1967).

. . .
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Meece complained of this “falsified testimony” in 

his pro se motion for a new trial filed prior to his 

sentencing. And, as demonstrated by his pre-trial motion 

to exclude “false testimony,” he knew the law on this 

subject as well as anyone in the courtroom. Thus, 

whether the misstatement by Meade was intentional or 

innocent under the circumstances, given that no 

explanation for his failure to impeach Meade is given or 

apparent from the context of the alleged occurrence, one 

may only conclude that the failure to impeach Meade 

upon this allegedly false statement was strategic and 

tactical.

Id. at 679-80 (emphasis added).

The same fundamental analysis applies here. Long before the relevant 

proceedings, Williams received discovery materials (the video of Warner’s 

interview with Killion) which could have been used to show that Warner testified

incorrectly at the suppression hearing or at trial. Yet Williams did not impeach 

Warner at either proceeding, nor did Williams ask the trial court for any 

affirmative relief based upon prosecutorial misconduct. Like the Court in Meece,

we must conclude Williams’ counsel made a conscious, strategic choice to not 

fully address the issues in the trial court. Therefore, we cannot find palpable error. 

After all, if perjured testimony in a case in which the defendant received the death 

penalty was insufficient to warrant appellate relief, Warner’s incorrect testimony in 

this case cannot entitle Williams to palpable error relief.

2

 

 

2

It is not clear whether Williams still challenges the propriety of the identifications by the three 

victims. To the extent Williams raises such a challenge, we affirm. An identification procedure 
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Despite Williams not being entitled to relief, we are disappointed by

the Commonwealth’s utter failure to even try to rectify Warner’s malleable 

testimony. In language still applicable today, Kentucky’s then-highest court 

explained ninety years ago that the Commonwealth’s goal is to seek justice, not 

convictions:

It has been often written that a prosecuting 

attorney should act impartially and see that justice is 

fairly meted out, which requires fair dealing with an 

accused in calling him to account for his crime. It is his 

duty to see that the legal rights of the accused, as well as 

those of the commonwealth, are fully protected; to 

prosecute and not persecute; to conduct himself with due 

regard to the proprieties of the office. He represents the 

people of the state, and in a degree should look after the 

rights of a person accused of a crime by endeavoring to 

protect the innocent and seeing that truth and right shall 

prevail.

 

focusing only on one person may be deemed suggestive. Duncan v. Commonwealth, 322 S.W.3d 

81, 96 (Ky. 2010). However, even if we assume, for purposes of argument, that the 

identification procedure used by Warner was “unduly suggestive” we cannot conclude that 

Williams satisfied the second step, which requires a court to determine “whether, in light of the 

totality of the circumstances, the suggestive procedures created ‘a very substantial likelihood of 

irreparable misidentification.’” Id. at 95 (quoting Simmons v. United States, 390 U.S. 377, 384, 

88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)). Both RP and Carter knew Williams prior to the 

robberies and Killion did not positively identify Williams from the photo shown to him by 

Warner. We find no clear error in the trial court’s factual findings nor any abuse of discretion in 

its ruling on the admissibility of the identification evidence. Duncan, 322 S.W.3d at 95 (setting 

forth those standards of review). In short, under the totality of the circumstances, Williams is not 

entitled to relief because the identification procedures did not create a substantial likelihood of 

irreparable misidentification. 
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Bennett v. Commonwealth, 234 Ky. 333, 28 S.W.2d 24, 26 (1930). The 

Commonwealth’s utter silence in response to Warner’s testimony is startling and 

inexplicable.

Indeed, Kentucky Supreme Court Rule (SCR) 3.130(3.3)(a)(1) forbids 

an attorney from “mak[ing] a false statement of fact or law to a tribunal or fail[ing]

to correct a false statement of material fact or law previously made to the tribunal 

by the lawyer . . . .” The Commonwealth asserted in both its written response to 

Williams’ motion to suppress and in oral statements at the hearing that Warner had 

not shown Killion any photographs. If the Killion interview tape depicts Warner 

showing Killion a photograph, which seems likely, we harbor grave concerns about 

whether the Commonwealth complied with SCR 3.130(3.3)(a)(1).

Similarly, SCR 3.130(3.3)(a)(3) prevents an attorney from offering 

evidence which is known to be false. That subsection also requires an attorney to 

take “reasonable remedial measures” if the attorney later learns that its witness has 

offered false, material evidence. It is inescapable that Warner testified falsely at 

either the suppression hearing or at trial, yet the Commonwealth took no 

remediation efforts whatsoever at either proceeding. Thus, we also harbor doubts 

about whether the Commonwealth complied with SCR 3.130(3.3)(a)(3).
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C. The Commonwealth’s Closing Arguments

1. Application of the Standards of Review

“An appellate court may reverse for prosecutorial misconduct 

occurring during closing argument only if the misconduct is ‘flagrant’ or if: (1) the 

proof of guilt is not overwhelming, (2) an objection is made, and (3) the trial court 

failed to admonish the jury after sustaining the objection.” Mayo v. 

Commonwealth, 322 S.W.3d 41, 55 (Ky. 2010). A court must find that a defendant 

satisfies all three factors to grant relief for non-flagrant prosecutorial misconduct—

in other words, relief is unavailable for non-flagrant misconduct if the evidence 

against a defendant is “overwhelming” because the misconduct would then be a 

harmless error. Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016). 

The evidence against Williams was overwhelming. Although 

Warner’s method of procuring identifications from the victims was idiosyncratic, 

two of the three victims knew Williams before the robberies and were positive he

robbed them, and the third victim unhesitatingly identified Williams at trial.

3

 

Therefore, we may analyze the challenged comments only for flagrant misconduct.

The test to determine if a prosecutor’s comments rise to the level of 

flagrant misconduct is: “(1) whether the remarks tended to mislead the jury or to 

 

3 Since it is undisputed that: a) Killion was with R.P. and Carter at the time of the robbery, b) 

one person robbed all three victims, and c) R.P. and Carter positively identified Williams as the 

robber, it logically follows that Williams also robbed Killion.
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prejudice the accused; (2) whether they were isolated or extensive; (3) whether 

they were deliberately or accidentally placed before the jury; and (4) the strength 

of the evidence against the accused.” Mayo, 322 S.W.3d at 56 (citation omitted). 

If there is a state of “relative equipoise” because two of the four factors favor a 

defendant and two favor the Commonwealth, we conduct “an examination of the 

trial as a whole” to ascertain whether the comments undermined its “essential 

fairness . . . .” Id. at 57. 

2. The Guilt Phase Statement

One of the main thrusts of Williams’ defense was some alleged 

inconsistencies in statements given by the victims. Indeed, almost immediately 

after Williams’ counsel began her penalty phase closing argument she said: “this 

case comes down to whether or not you believe the evolving nature of the stories 

of the three young men that were in the car on that night.” Towards that end, 

Williams’ counsel highlighted some alleged inconsistencies in the three victims’

interactions with the officer who responded to the 9-1-1 call, including playing 

portions of the video of that interaction to the jury. In its guilt phase closing 

argument, the Commonwealth argued that the portions of the videos not shown to 

the jury were not helpful to Williams (i.e., showed the victims’ statements were 

consistent). 
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We agree with Williams that the Commonwealth Attorney should 

“confine his or her argument to the facts in evidence . . . .” Childers v. 

Commonwealth, 332 S.W.3d 64, 73 (Ky. 2010), overruled on other grounds by

Allen v. Commonwealth, 395 S.W.3d 451 (Ky. 2013). And the unplayed portions 

of the recording(s) were not in evidence. However, “[i]t is well-established that

the Commonwealth may respond to comments made by defense counsel during 

closing arguments . . . .” Ordway v. Commonwealth, 391 S.W.3d 762, 795-96 (Ky. 

2013). The Commonwealth was thus permitted to respond to Williams’ argument 

that the victims’ stories were exculpatorily inconsistent.

In addition, “the prosecutor is entitled to draw reasonable inferences 

from the evidence, make reasonable comment upon the evidence and make a 

reasonable argument in response to matters brought up by the defendant . . . [and]

is given wide latitude in making arguments to the jury . . . .” Childers, 332 S.W.3d 

at 73. Although better practice here perhaps would have been to seek to play the 

whole interview tapes to the jury, it was not inherently illogical or impermissible 

for the Commonwealth to assert that the jury could reasonably infer that the parts

of the tapes not highlighted by the defense were favorable to the Commonwealth. 

Even if we were to conclude that the comment was improper, it was 

isolated, Williams has not shown how it misled the jury or prejudiced him unduly,
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and the evidence against Williams was strong. Thus, Williams would not be 

entitled to relief.

3. The Penalty Phase Statements

Williams argues the Commonwealth three times made “send a 

message” arguments in its penalty phase closing argument. Our Supreme Court 

has held that it generally disapproves of those arguments: “Any effort by the 

prosecutor in his closing argument to shame jurors or attempt to put community 

pressure on jurors’ decisions is strictly prohibited. Prosecutors may not argue that 

a lighter sentence will ‘send a message’ to the community which will hold the 

jurors accountable or in a bad light.” Cantrell v. Commonwealth, 288 S.W.3d 291, 

299 (Ky. 2009). However, in the penalty phase alone, the Commonwealth is 

permitted to make “send a message” arguments so long as the argument is 

“channeled down the narrow avenue of deterrence.” Id.

We do not find the three challenged statements by the Commonwealth 

asked the jury to “send a message.” Our Supreme Court has given a pluperfect 

example of a “send a message” argument: “the whole town is depending on you to 

find the defendant guilty and lock him up for a long time so as to send a message 

to all the other criminals in the community that this town is not going to put up 

with this type of criminal activity.” Ordway, 391 S.W.3d at 797. Here, the 

Commonwealth did not attempt to cajole or coerce the jury to recommend a stiff 
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sentence to “send a message” to the community or other criminals about the 

community’s approach to crimes. 

Instead, the thrust of the Commonwealth’s comments was to

encourage the jury to give Williams a sentence significant enough to protect the 

community, considering Williams’ criminal history and the nature of the crimes for 

which that same jury had just found him guilty. Our Supreme Court has 

“caution[ed] the Commonwealth that it is not at liberty to place upon the jury the 

burden of doing what is necessary to protect the community.” Commonwealth v. 

Mitchell, 165 S.W.3d 129, 132 (Ky. 2005). But for nearly eighty years Kentucky 

precedent has also recognized that the “true purpose” of criminal prosecutions “is 

to protect the public by punishing the criminal and preventing crime.” Frazier v. 

Commonwealth, 291 Ky. 467, 165 S.W.2d 33, 34 (1942). Accord Cantrell, 288 

S.W.3d at 298.

Although there appears at first blush to be some tension between the 

statement in Mitchell that the Commonwealth cannot place the burden to protect 

the community on the jury and the statements in Frazier and Cantrell that 

protecting the public is a purpose of our criminal law system, we understand the 

cumulative impact of those holdings to be that the Commonwealth may ask for a 

sentence sufficient to protect the community in light of that defendant’s criminal 

history and the seriousness of the offenses for which the defendant had just been 
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convicted. But the Commonwealth may not assert that the jury is the entity 

charged with protecting the community. For example, it would be improper for the 

Commonwealth to argue: “You, the jurors of Kenton County are all that stands 

between safety and lawlessness. The whole community is depending on you for its 

safety, so please give this Defendant the maximum sentence.” 

In short, the Commonwealth may do what it did here: ask a jury to 

recommend a sentence sufficient to help protect a community, considering the 

defendant’s offenses and criminal history. Our conclusion that the Commonwealth 

did not cross the line here is buttressed by the fact that the Commonwealth did not 

ask the jury to recommend a maximum sentence and agreed with Williams’

counsel that these robberies were not the “worst of the worst.” And it is plain that 

the jury was not inflamed against Williams since its twelve-year total sentencing 

recommendation is almost the minimum possible sentence.

In sum, we do not find the comments—singularly or cumulatively—to 

be improper. Accordingly, we readily conclude Williams is not entitled to relief 

based upon flagrant prosecutorial misconduct.

4

 

4 Even if we engaged in a flagrancy determination, Williams would not be entitled to relief. 

Arguably, two factors favor Williams (intentional comments which occurred three times) and 

two favored the Commonwealth (no misleading of the jury/prejudice to Williams and strong 

evidence against Williams). Given that state of equipoise, we would have looked to the entire 

trial to assess whether the remarks undermined its fundamental fairness. Mayo, 322 S.W.3d at

57. On balance, we cannot say the three statements were so overwhelmingly improper as to 

undermine the fairness of the trial as a whole, or even just the penalty phase.
-23-

CONCLUSION

For the foregoing reasons, Jimmy Dean Williams’ conviction and 

sentence are affirmed.

THOMPSON, L., JUDGE, CONCURS.

DIXON, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT:

Travis Bewley

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Jenny L. Sanders

Assistant Attorney General

Frankfort, Kentucky