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RENDERED: APRIL 21, 2011 

NOT TO BE PUBLISHED 

o$uprrtur Court oftlfir 

2008-SC-000798-MR 

EAT 

PATRICK ALLEN WATKINS APPELLANT 

ON APPEAL FROM CLARK CIRCUIT COURT 

V. HONORABLE GARY D. PAYNE, JUDGE 

NO. 07-CR-00051-001 

COMMONWEALTH OF KENTUCKY APPELLEE 

AND 

2008-SC-000823-MR 

JOY RENEE WATKINS APPELLANT 

ON APPEAL FROM CLARK CIRCUIT COURT 

V. HONORABLE GARY D. PAYNE, JUDGE 

NO. 07-CR-00051-002 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING, IN PART, AND REVERSING AND REMANDING, IN PART 

Appellants, Patrick and Joy Watkins, were found guilty by a Clark Circuit 

Court jury of wanton murder. For these crimes, Appellants were sentenced to 

life imprisonment. They now appeal their convictions as a matter of right. Ky. 

Const. § 110(2)(b). 
I. BACKGROUND 

In the spring of 2007, Patrick and Joy Watkins resided in Winchester, 

Kentucky. The couple was married and had two young children together. The 

Watkinses had also obtained legal custody of young Michaela Watkins, 

Patrick's daughter from a previous marriage. Michaela was twelve years old 

and had been in foster care after being removed from her biological mother's 

custody due to severe abuse and neglect. Michaela later died a tragic death. 

The relevant facts are as follows. 

At 3:56 p.m. on Sunday, March 11, 2007, Patrick called his sister, 

Stephanie Radar, and asked her to come to his apartment. When Stephanie 

and her husband arrived, Patrick indicated that something was wrong with 

Michaela. After Stephanie asked Patrick where Michaela was, he initially 

responded, "[s]he's in there on the bed asleep." Patrick soon admitted that 

Michaela was not asleep but dead, explaining that she had fallen down the 

stairs some forty-five minutes earlier. Stephanie did not believe him because 

"[i]t looked like she had been beaten to death." Patrick stated that he "needed 

his family" and that "he was going to jail." 

In response to Radar's 911 call, paramedic Gary Conn soon arrived on 

the scene and found Michaela lying on her bed with a blanket draped over her 

body. As Conn was examining Michaela, Patrick appeared at the door and 

Conn asked him what had happened. Patrick again responded that Michaela 

had fallen down the stairs an hour earlier. Conn, however, did not believe that 
her injuries were caused by such a fall, nor did he believe that Michaela had 

only been dead for an hour. He noted that she was cold to the touch, rigor 

mortis had set in, and lividity was present. When Sergeant Frick asked what 

happened, Patrick similarly responded that Michaela had fallen down the stairs 

and that, afterward, she went to her bedroom. Sergeant Frick discovered 

Michaela with "a bruised face like I have never seen before." 

Detective Hall began his investigation at the scene and Patrick gave the 

same explanation. He viewed Michaela's body and observed pattern bruising 

on her face, a bite mark behind her ear, a bite mark on her left ankle, and 

significant burns on her legs. He noticed that the burn marks went straight 

down the back of her legs, indicating that she had likely been held down in hot 

water, that her heels had unbroken blisters, indicating that she likely did not 

walk afterwards, and that there were no splash marks on her body, indicating 

that the burns were not accidental. Patrick and Joy stated that Michaela had 

burnt herself the previous night while taking a bath. 

Based upon all the evidence, deputy coroner Dr. Hamon believed that 

Michaela died between four and six hours earlier (between 11:15 a.m. and 1:15 

p.m.), that she did not die in bed but was placed there, and that her injuries 

were not self-inflicted. 

The testimony of medical examiner Cristin Rolf figured prominently into 

trial. Dr. Rolf identified dozens of bruises and abrasions to Michaela's head; as 

well as a broken vertebrate and bleeding around her spinal cord. Michaela 

3 
suffered at least second-degree burns on the backs of her legs, buttocks, 

vagina, and feet, and the skin was removed in spots. There was a well-defined 

line where the tissue was burned, while the balls of her feet and toes were not 

burned. Dr. Rolf believed that someone either held Michaela in hot water or 

that she was too weak to move. 

Notably, Dr. Rolf discovered that Michaela had a large bruise on the left 

side of her chest. Under the bruise, her ribs were fractured (five in particular 

were crushed and compressed into other bones), and the left lung was partially 

collapsed - known as a "flailed" chest injury, causing significant pain and 

difficulty breathing. Though Dr. Rolf was unable to determine the exact cause 

of the chest injury, she believed that it was likely brought about by a forceful, 

high velocity blow or blunt impact. 

Dr. Rolf concluded that all of Michaela's injuries occurred within thirtysix hours and that they were neither self-inflicted nor caused from a fall down 

the stairs. She believed that the flailed chest was the cause of Michaela's 

death, though noting that the blunt impacts to her head, trunk, and 

extremities could have also contributed. Dr. Rolf also noted that Michaela had 

burns covering her lower extremities and testified that "with the removal of the 

skin, a person can become infected and die easily—very quickly—if it's not 

treated." 
Joy gave several taped police statements.' Though initially reluctant to 

offer much detail, Joy admitted that, on Saturday morning, she placed her 

entire body weight on the child, restraining her, and hitting her in - the face. 2At 

that point, Michaela urinated on herself, which temporarily stopped the abuse. 

Both Joy and Patrick then ordered Michaela to bathe. Joy maintained that she 

did not know who ran the hot water causing Michaela's burns, but that she ran 

upstairs to the bathroom after hearing Michaela scream and saw Patrick 

standing in the hallway. Michaela proceeded to fall three times and strike her 

head (twice in the bathroom and once down the stairs). Michaela's legs were 

later bandaged and ointment was applied to her burns. Joy noticed that the 

skin was peeling on Michaela's heels and she asked Patrick whether they 

should take Michaela to the hospital, but he responded that she would be 

okay. Patrick carried Michaela downstairs where she ate dinner and watched 

television. 

According to Joy, Michaela awoke the next morning and ate breakfast 

but was acting strangely. She stated that Michaela vomited and began to fall 

down and lurch over at times. The family soon left the apartment and drove to 

Red River Gorge for a family picnic. 

Joy maintained that Michaela was alive during the drive to the Gorge. 

Contradicting prior statements, Joy stated that, once there, Michaela was not 

feeling well and that she stayed in the car while the other children ate and 

1Patrick and Joy gave taped statements to police, all of which were played for the 

jury. Neither testified at trial. 

2Joy admitted to occasionally biting and backhanding Michaela "really hard." 
played. Several times throughout the day, Joy stated that Michaela was in 

need of medical attention. She claimed that Patrick refused to take Michaela to 

a hospital because he suspected that Michaela was trying to manipulate them 

and because he was fearful that Joy's prior acts of physical abuse would be 

discovered. 

On the drive back to Winchester, Michaela was unresponsive and Joy 

was upset. When they arrived home sometime before 3:00 p.m., Patrick carried 

Michaela to her bedroom before returning to Joy and stating that something 

was wrong. 

Patrick offered less information to police and his account diverged from 

Joy's in several ways. According to Patrick, it was Michaela that had - filled the 

tub with scalding hot water and burned herself. Patrick maintained that 

Michaela was later able to walk down the stairs and eat dinner with the family. 

On the way home from the Gorge, he noticed that Michaela's hands were cold. 

When the family returned home, Patrick claimed that Michaela walked into the 

apartment. It was then that Michaela allegedly fell down an entire flight of 

stairs and hit her head before going to bed. When Patrick went to check on her 

thirty to forty-five minutes later, he found Michaela lying in her bed 

unresponsive and not breathing. Patrick admitted that a "mistake" was made 

in failing to take Michaela to the hospital. When confronted with Joy's 

statement that she found him upstairs after hearing Michaela scream, Patrick 

announced he had nothing else to say. 

6 
At trial, Appellants argued that their culpability, if any, did not rise to the 

level of wanton murder. Patrick maintained that Michaela had burned herself, 

that he had never witnessed Joy physically abuse Michaela, but that he 

neglected to take her to a hospital or otherwise obtain medical assistance. 

While Joy admitted that she, too, should have sought medical assistance for 

Michaela, she claimed that she did not intentionally or knowingly cause 

Michaela's fatal chest injury, and that she did not know who had run the hot 

bath water. 

At the conclusion of trial, the jury found Appellants guilty of wanton 

murder, fixing their punishment at life imprisonment. On appeal, Appellants 

raise several allegations of error in their underlying trial. Due to the improper 

hearsay used against him, we reverse Patrick Watkins' conviction, but affirm 

Joy Watkins'. 

II. ANALYSIS 

A. Right of Confrontation: Statements 

Appellants argue that their Sixth Amendment confrontation rights were 

offended when the trial court permitted the Commonwealth to introduce their 

police interviews without redaction, limiting admonition, or opportunity for 

cross-examination. Puzzlingly, the Commonwealth contends that the 

"statements exculpated both of the Watkines, rather than incriminating either 

of them." 

7 
Prior to trial, Appellants filed a motion arguing that, absent an 

opportunity for her cross-examination, the Confrontation Clause prohibited 

their unredacted, out-of-court statements to be admitted at trial. The motion 

was continued several times and, ultimately, never heard or ruled upon until 

the Commonwealth attempted to play the police interviews for the jury. In 

response to a defense objection, the Commonwealth insisted that during the 

interviews, Appellants simply did not incriminate one another and thus 

redaction was not required. The trial court briefly reviewed, in camera, the 

partial transcripts tendered before overruling the objection. Having reviewed 

the statements, we find error with respect to both Patrick and Joy; but, 

pertaining to Joy, we hold the error was harmless. 

At the outset, we note that though Patrick's brief cites Crawford v. 

Washington, 541 U.S. 36 (2004) in support of his contentions here, the nature 

of his argument indicates that his allegation of error rests not on Crawford, 

but, rather, on Bruton v. United States, 391 U.S. 123 (1968) - i.e., that Joy's 

unredacted statements incriminated him. 3 

Crawford held that "the Confrontation Clause of the Sixth Amendment 

forbids admission of all testimonial hearsay statements against a defendant at 

a criminal trial, unless the witness is unavailable and the defendant has had a 

3In his original motion in limine before the trial court, Patrick cited Bruton and the 

Commonwealth, noting this "curiosity" responded in its brief to both Crawford and 

Bruton. 

8 
prior opportunity for cross-examination." 4Bray v. Commonwealth, 177 S.W.3d 

741, 743 (Ky. 2005) (emphasis added) (citing Crawford, 541 U.S. at 68); see 

also Rankins v. Commonwealth, 237 S.W.3d 128, 130 (Ky. 2007) ("Returning to 

the Framers' intent, Crawford held that the Sixth Amendment prohibits the 

admission of the testimonial statement of a declarant who does not appear at 

trial, unless the declarant is unavailable to testify and the defendant had a 

prior opportunity for cross-examination."). "In the context of a joint trial, 

therefore, the pretrial confession of one [defendant] cannot be admitted against 

the other unless the confessing defendant takes the stand."' Rodgers v. 

Commonwealth, 285 S.W.3d 740, 745-46 (Ky. 2009) (quoting Richardson v. 

Marsh, 481 U.S. 200, 206 (1987)). 

Before Crawford may apply at all, the hearsay at issue must be 

considered "testimonial" in nature. As we explained in Rankins, the holding in 

Crawford concerns "'testimonial' statements, because it is statements of a 

testimonial character, as opposed to other hearsay, which cause the declarant 

to be a witness against the accused for purposes of the Confrontation Clause." 

237 S.W.3d at 130 (citation omitted). At a minimum, testimonial hearsay 

encompasses "prior testimony at a preliminary hearing, before a grand jury, or 

at a former trial" or statements made during "police interrogations." Crawford, 

541 U.S. at 68. In general, hearsay may be "testimonial when the 

4The Court in Crawford explicitly noted that the Confrontation Clause "does not bar 

the use of testimonial statements for purposes other than establishing the truth of 

the matter asserted" - i.e., non-hearsay uses. 541 U.S. at 59 n.9 (citing Tennessee 

v. Street, 471 U.S. 409, 414 (1985)). 
circumstances objectively indicate that there is no . . . ongoing emergency, and 

that the primary purpose of the interrogation is to establish or prove past 

events potentially relevant to later criminal prosecution." Davis v. Washington, 

547 U.S. 813, 822 (2006). 5 

However, "Crawford and its progeny do not address the use of a prior 

testimonial statement against the declarant himself," which is the question 

addressed in Bruton and its progeny. 6 Rodgers, 285 S.W.3d 746. Therefore 

complementing the protections in Crawford is the holding in Bruton, wherein 

the Supreme Court of the United States "held that a defendant is deprived of 

his rights under the Confrontation Clause when his nontestifying codefendant's 

5 The Court in Crawford added: 

Various formulations of this core class of testimonial statements exist: 

ex parte in-court testimony or its functional equivalent - that is, material 

such as affidavits, custodial examinations, prior testimony that the 

defendant was unable to cross-examine, or similar pretrial statements 

that declarants would reasonably expect to be used prosecutorially; 

extrajudicial statements . . . contained in formalized testimonial 

materials, such as affidavits, depositions, prior testimony, or 

confessions; statements that were made under circumstances which 

would lead an objective witness reasonably to believe that the statement 

would be available for use at a later trial. 

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531 (2009) (quoting Crawford, 

541 U.S. at 51-52). 

Generally speaking, a statement is 

"against" a defendant for purposes of the Confrontation Clause only if [the] 

testimony is part of the body of evidence that the jury may consider in 

assessing his guilt. Therefore, a witness whose testimony is introduced 

in a joint trial with the limiting instruction that it be used only to assess 

the guilt of one of the defendants will not be considered to be a witness 

"against" the other defendants [unless it is incriminating pursuant to 

Bruton]. 

Cruz v. New York, 481 U.S. 186, 190 (1987) (emphasis added). 

10 
confession [implicating] him as a participant in the crime is introduced at their 

joint trial, even if the jury is instructed to consider that confession only against 

the codefendant." Richardson v. Marsh, 481 U.S. 200, 202 (1987) 

(summarizing the Bruton rule); see Bruton, 391 U.S. at 137 ("[I]n the context of 

a joint trial we cannot accept limiting instructions as an adequate substitute 

for petitioner's constitutional right of cross-examination. The effect is the same 

as if there had been no instruction at all."). 

Yet, given certain conditions, a joint trial may be had: "[W . . . . the [nontestifying co-defendant's] confession is redacted so as to remove all reference to 

the co-defendant(s), including obvious inferential references, then the 

confession may be admitted against the confessor," Rodgers, 285 S.W.3d at 

746 (citing Richardson, 481 U.S. at 206; Gray v. Maryland, 523 U.S. 185 

(1998)), "if a limiting instruction is given to admonish the jury not to consider 

the [confession] as evidence against any defendant other than the [confessor]." 7 

Commonwealth v. Stone, 291 S.W.3d 696, 700 (Ky. 2009) (citing Richardson, 

481 U.S. at 207-08); but see Shepherd v. Commonwealth, 251 S.W.3d 309, 

314 (Ky. 2008) ("In accordance with Gray v. Maryland, 523 U.S. 185, 195 . . . 

(1998) and Stanford v. Parker, 266 F.3d 442, 457 (6th Cir. 2001), this Court 

has extended slightly the protections of Bruton, holding that redacted 

confessions which merely delete the name of the other defendant or insert the 

phrase 'other party' or 'deleted' also constitute a Bruton violation because the 

7We restate that the court need only "giVe the limiting admonition 'upon request."' 

Barth v. Commonwealth, 80 S.W.3d 390, 397 (Ky. 2001); see also Caudill v. 

Commonwealth, 120 S.W.3d 635, 658 (2003). 

11 
statements still facially incriminate the co-defendant.") (citing Barth, 80 S.W.3d 

at 395 (Ky. 2001)); Stone, 291 S.W.3d at 701 ("When the purpose of the 

statement is to incriminate the non-declarant, a Bruton redaction makes no 

sense. In that situation, Crawford must be considered."). 8 

1. Patrick's Bruton Challenge to Joy's Statements 

Turning to Patrick's arguments here, he identifies seventeen different 

statements that Joy made in police interviews that, he contends, incriminated 

him. 

We have reviewed the statements and conclude that the following were 

properly admitted without redaction. When asked whether Joy saw Patrick hit 

Michaela, Joy replied, "[ilf he did, then I don't know why, and I didn't see it and 

that's the honest to God's truth. I'm just saying I did not see it . . . Is it 

possible that he did? I'm not saying it's not possible." At another point in the 

interview, Joy was again asked to explain what happened during Michaela's 

bath: "Now as far as Michaela goes, am I saying my husband didn't hold her in 

the bath? I'm not saying he did. I'm not saying he didn't. . . . It is possible 

8 In Rodgers, we also noted: 

Where a jury hears a non-testifying co-defendant's statement to be 

considered only against that particular defendant/declarant, both the 

redaction and the limiting instruction . . . insure compliance with 

Crawford, i.e., facially incriminating matters are removed and even if 

inferentially incriminating statements remain the admonition is 

presumed to be followed so that the testimonial hearsay is not being 

used against the defendant(s) who did not make the statement. 

[Therefore, tjhe combination of redaction and limiting instruction 

satisfies Crawford. 

285 S.W.3d at 747; but see Stone, 291 S.W.3d at 697-701 (Crawford implicated 

when redacted confession of co-defendant explicitly used against defendant). 

12 
that he did, I'm not saying it's not possible." Joy also made several statements 

regarding the family's trip to Red River Gorge and other events occurring on the 

day Michaela died, including, "Was she unresponsive in the car on the way 

back from the Gorge? Yes, she was." And, "[i]t felt to me like she had a 

heartbeat, but I wasn't sure." In response the question asking whether Joy 

knew Michaela was dead, Joy stated "I didn't know for sure, like I told you 

earlier, I was not positive, I was driving . . . I suspected something was not 

right . . . something was very serious [sic] wrong." Finally, when the group 

arrived home from the Gorge, Joy stated that she, "came in and got the little 

ones some juice and they went upstairs to play." 

In none of these statements can it be said that Joy expressly or implicitly 

incriminated Patrick in Michaela's death. 

However, we conclude that the following statements were improperly 

admitted and should have been redacted in order to protect Patrick's right of 

confrontation under Bruton. In her statements, Joy indicated that Patrick was 

upstairs with Michaela alone when she was burned in the bath tub: 

Yeah, [Patrick] was upstairs at some point in time. I do know that. 

I don't know what for. 

When I went upstairs, I tried to help get her out of the bathtub and 

she flopped backwards before anybody could grab her. I asked 

[Patrick] what happened and he said, "I guess the water's too hot." 

Does he feel responsible? Yeah, I think he does feel responsible. 

I'm not going to lie to you. 

Though not specifically identified, Joy's related statement to the effect that she 

found Patrick in the upstairs hallway after hearing Michaela scream should 

13 
have also been redacted. In addition, Joy assigned knowledge to Patrick that 

Michaela was grievously injured and in need of medical attention and explained 

that Patrick, in response, did nothing: 

I told my husband that I thought she needed to go to the hospital. 

I did. 

That's when I told him that we needed to get something to put on 

her feet. So he gave me the money and I went down and got that 

and I came back and then I told him later on that we probably 

need to take her to the hospital. He said "No. She'll be fine." 

She said, "Can I lay down?" and I said, "Yeah, you can lay down." 

So she laid down for a minute and when she laid down and 

stretched out, I noticed the skin on her heels peeling. And that's 

when I told her dad, I said, "Maybe we should take her to the 

hospital." And the reason he didn't want to take her to the 

hospital wasn't to protect himself. I think it was to protect me 

because of the bruises on her face. 

Later on that night, I told my husband, I said, "Are you sure?" She 

hadn't complained of hurting and I said, "Are you sure we 

shouldn't take her to the hospital?" And he said, "I think she's 

fine. She's just trying to use it as a way to manipulate us." I said, 

"Okay." 

When I went in that morning is when I stressed how important it 

was that I thought we needed to take her to the doctor because 

that's when I realized how bad her skin was peeling. I don't even 

recall what my husband said at the time. I just know that we just 

didn't go to the doctor. 

All we kept saying back and forth to each other [sic}, "Is she okay? 

What should we do? Where should we go? What should—" that's 

all we kept saying. 

I think we just went home and said, "let's see if she's all right," and 

once we got home and about an hour in, we realized that . . . after 

he got her in and we got her to the bedroom and she was in there I 

don't know how long and she hadn't moved and that's when we 

really realized, no, she's gone. 

At that point, yeah, I knew something was definitely, he told me 

14 
that he went in to check on her and he said she wasn't—something 

wasn't right. He just said, "She's not right. I don't think she's 

breathing." 

All the way back to Winchester, we both just [sic] there and we 

kept .. . "Is she alive?" I mean we were literally in shock. 

Furthermore, when asked why she did not seek medical treatment for 

Michaela, Joy responded: 

I guess because Patrick was so panicky and scared. He was 

worried about our kids and worried about them being taken away. 

That's where I made my mistake and I told you that earlier. 

And subsequently, when asked why someone did not call for an ambulance 

after Patrick stated that he did not think Michaela was breathing, Joy stated, "I 

don't know. I just did what—I was just doing what I was told to do." 

That these statements were especially incriminating cannot be 

questioned when one of the three theories of wanton murder expressed in the 

jury instructions was that Patrick "fail[ed] to provide medical treatment or aid 

for [Michaela's] resulting injuries." These statements directly inculpated 

Patrick, thus we cannot conclude that they were cumulative evidence or 

harmless error. Rather, this is a blatant situation "where the powerfully 

incriminating extrajudicial statements of a codefendant, who stands accused 

side-by-side with the defendant, are deliberately spread before the jury in a 

joint trial." Bruton, 391 U.S. at 135-136. Because the Commonwealth 

disregarded a basic tenet of constitutional law—the Bruton rule—by forging 

ahead and introducing Joy's unredacted and inculpatory statements, we have 

no choice but to reverse. 

15 
Since we are reversing Patrick's conviction, we address, at the conclusion 

of this opinion, his remaining allegations of error only to the extent that they 

are likely to recur on retrial. 

2. Joy's Bruton and Crawford Challenge to Patrick's 

and Other Witness' Statements 

Joy, too, argues that her Sixth Amendment confrontation rights were 

offended when the Commonwealth was permitted to introduce Patrick's police 

interview without redaction, limiting admonition, or opportunity for crossexamination. Having reviewed Patrick's statements that were played for the 

jury, we agree, but find that the error harmless beyond a reasonable doubt. 

See Chapman v. California, 386 U.S. 18, 24 (1967); Heard v. Commonwealth, 

217 S.W.3d 240, 244 (Ky. 2007) ("It must not be overlooked that 'before a 

federal constitutional error can be held harmless, the [reviewing] court must be 

able to declare a belief that it was harmless beyond a reasonable doubt.") 

(quotation omitted). 

Save one reference, Joy's wholesale objection to Patrick's interview as 

offending Bruton lacks merit. Patrick stated: "Obviously there was a mistake 

made because we didn't take [Michaela] to the doctor, for one. That was a 

mistake, for one. That was made." (Emphasis added). Joy, however, fails to 

show how this reference prejudiced her when she admitted that she knew 

something was wrong and that she should have taken Michaela to a hospital 

for medical treatment. 

16 
Joy contends that Patrick's statements nevertheless constituted 

testimonial hearsay in violation of Crawford. While Patrick's statements were 

most assuredly testimonial in character, Joy offers no credible argument for 

how his statements prejudiced her but merely asserts that Patrick's denials 

and explanations were so implausible in the face of contrary forensic evidence 

that she, too, was somehow tainted. 

Next, Joy takes issue with statements that Patrick made to Conn, Hall, 

Frick, and Stephanie Radar. At the scene, Patrick proffered the same 

explanation to Conn, Sergeant Frick, and Detective Hall regarding Michaela's 

cause of death: that she had fallen down the stairs some thirty to forty-five 

minutes prior to their arrival. In the 911 call placed by Radar, Patrick can be 

heard in the background stating that Michaela had burnt herself, fallen out of 

the bathtub and again down the stairs, along with a similar chronology of the 

days' events he would later give during his police interview. Joy argues that 

these statements, which were met with skepticism, somehow prejudiced her. 

While none of these statements facially incriminated her, Joy again asserts that 

their admission violated Crawford. 

We find no manifest injustice. 9Even assuming that there was no 

ongoing emergency and Patrick's statements were testimonial hearsay, Joy 

9 Introduction of the statements was not objected to at trial and thus the errors are 

not preserved. Joy, however, requests palpable error review. This Court has held 

that "an unpreserved error may be noticed on appeal only if the error is 'palpable' 

and 'affects the substantial rights of a party,' and even then relief is appropriate 

only 'upon a determination that manifest injustice has resulted from the error."' 

Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting RCr 10.16). "An 

unpreserved error that is both palpable and prejudicial still does not justify relief 

17 
provides no compelling reason as to why such error should not be recognized 

as harmless beyond a reasonable doubt, which it is. 

B. Right of Confrontation: Lab Reports 

Joy next contends that it was a violation of Crawford, and more 

specifically, its most recent incarnation, Melendez-Diaz, for the Commonwealth 

to admit various lab reports when their authors did not testify at trial so as to 

permit cross-examination. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 

(2009). We agree, but also find such error to be harmless. 

At trial, Dr. Rolf, the assistant medical examiner, testified that she 

utilized two other experts, a dentist and a neuropathologist, in formulating her 

autopsy report. Near the conclusion of Dr. Rolfs direct examination, the 

Commonwealth moved to introduce her autopsy report as well as the dentist's 

report and neuropathologist's report. Joy objected and argued that the 

Confrontation Clause forbids these additional reports from being received into 

evidence because the individuals who prepared them were not available for 

cross-examination. In response, the Commonwealth argued that Dr. Rolf was 

present when the dentist and neuropathologist performed their examinations 

and that her autopsy report thus incorporated those reports. The trial court 

overruled the objection, finding that Dr. Rolf had appropriately relied upon the 

reports. 

unless the reviewing court further determines that it has resulted in a manifest 

injustice, unless, in other words, the error so seriously affected the fairness, 

integrity, or public reputation of the proceeding as to be 'shocking or 

jurisprudentially intolerable."' Id. (quoting Martin v. Commonwealth, 207 S.W.3d 1, 

4 (Ky. 2006)). 

18 
As detailed above, the Sixth Amendment provides a criminal defendant 

with the "right . . . to be confronted with the witnesses against him," and when 

the prosecution seeks to introduce testimonial hearsay, the right to crossexamination. The Supreme Court of the United States recently considered the 

applicability of the Confrontation Clause to "affidavits reporting the results of 

forensic analysis." Melendez-Diaz, 129 at 2530. In that case, Melendez-Diaz 

was charged with distributing cocaine, and, at his trial, the prosecution 

introduced three "certificates of analysis," prepared by state-employed analysts, 

concluding that the substance he possessed was cocaine. Id. at 2530-31. The 

Court held that the admission of these certificates violated the Confrontation 

Clause, as Melendez-Diaz was unable to confront the analysts who prepared 

these certificates, i.e., the witnesses against him. Id. at 2532. The High Court 

further explained that "the 'certificates' are functionally identical to live, incourt testimony, doing 'precisely what a witness does on direct examination:m 

declaring that the substance found in Melendez-Diaz's possession was cocaine. 

Id. at 2532 (quoting Davis v. Washington, 547 U.S. 813, 830, (2006)). Finally, 

the Court held that the prosecution failed to satisfy Crawford's dictates, since 

it could not "sho[w] that the analysts were unavailable to testify at trial and 

that [Melendez-Diaz] had a prior opportunity to cross-examine them." Id. at 

2532. 

With the above framework in mind, we conclude here that the trial court 

erred when it admitted the dentist's and neuropathologist's reports. Neither 

19 
medical professional testified at trial, thereby depriving Joy of her 

constitutional right "to be confronted with the witnesses against [her]." Rather, 

like Melendez-Diaz, she was forced to accept, without question, the substance 

and accuracy of the dentist's and neuropathologist's reports. Furthermore, 

the Commonwealth failed to show that the dentist and neuropathologist were 

unavailable to testify and that Joy had a prior opportunity to cross-examine 

them. 

However, as previously stated, although we find error here, such error 

was harmless beyond a reasonable doubt. See Chapman v. California, 386 

U.S. 18, 24 (1967); Heard v. Commonwealth, 217 S.W.3d 240, 244 (Ky. 2007) 

(detailing the harmless error standard for examining constitutional errors). 

The dentist's report, which performed a bite mark analysis, was introduced 

apparently as evidence that Joy bit Michaela. We conclude this report is 

harmless given Joy's admission that she did bite the victim. Next, the 

neuropathologist's report is also harmless, as it was extraneous to 

Commonwealth's theories—beating, scalding, or failing to medically treat—

regarding the method of wanton murder. 10Notably, Joy fails to present any 

argument addressing the alleged prejudicial effect, apparently content to call it 

10 Joy makes several passing, detached statements regarding the admission of the 

toxicology tests on the victim's blood and urine. Those tests revealed the presence 

of an antidepressant, a mood-controlling drug, and Tylenol. It is unclear whether 

she specifically objected and preserved this error. Nonetheless, for the same 

reasons as above, namely, that the evidence is not related to the Commonwealth's 

theories of wanton murder, any error is harmless beyond a reasonable doubt. 

20 
to our attention. Therefore, after examining the evidence, we conclude that 

there is no reasonable possibility that this error contributed to her conviction. 

C. Jury Instructions 

1. Unanimous Verdict 

Joy next contends that, pursuant to Section 7 of the Kentucky 

Constitution, she was denied the right to a unanimous verdict because the jury 

instructions, as presented, permitted her murder conviction on theories 

unsupported by the evidence. The wanton murder" instruction under which 

she convicted read: 

You will find [Joy] guilty of Murder under this Instruction if, and 

only if, you believe from the evidence beyond a reasonable doubt 

that in this county on or about the 11th day of March, 2007, and 

before the finding of the Indictment herein, [Joy] caused the death 

of Michaela Watkins by wantonly engaging in a course of conduct 

by beating or scalding her, or failing to seek medical treatment or 

aid for the resulting injuries, which created a grave risk of death to 

Michaela Watkins and thereby caused the death of Michaela 

Watkins under circumstances manifesting an extreme indifference 

to human life. 

(Emphasis added). The above instruction, known as a combination 

instruction, presented multiple theories of the crime in a single instruction. As 

such, Joy contends that the verdict did not specify under which of the three 

theories they were found guilty, and thus, argue that this instruction offended 

11 "A person is guilty of murder when . . . he wantonly engages in conduct which 

creates a grave risk of death to another person and thereby causes the death of 

another person." KRS 507.020(1)(b). See also KRS 507.020 Commentary (1974) 

("Subsection (1)(b) following the lead of the Model Penal Code and other modern 

statutes, manifests a judgment that there is a type of homicide that should be 

treated as murder even though the actor had no conscious desire to cause the 

victim's death."). 

21 
their right to a unanimous verdict because there was insufficient evidence to 

support all three alternative methods of committing wanton murder. 

Before turning to the merits of the argument, we pause briefly to note 

that Joy failed to preserve this alleged error and essentially concedes such in 

her brief. The error assigned to an erroneous jury instruction is unpreserved 

"unless the party's position has been fairly and adequately presented to the 

trial judge by an offered instruction or by motion, or unless the party makes 

objection before the court instructs the jury, stating specifically the matter to 

which the party objects and the ground or grounds of the objection." RCr 

9.54(2). Joy concedes that "no specific objection was made to the nonunanimous verdict," and does not argue, or provide any citation to the record, 

that she offered an instruction or made a motion relating to this jury 

instruction. Thus, we review this assignment of error to jury instruction for 

palpable error. RCr 10.26. 

This Court has long held that "a verdict can not be successfully attacked 

upon the ground that the jurors could have believed either of two theories of 

the case where both interpretations are supported by the evidence and the 

proof of either beyond a reasonable doubt constitutes the same offense." Wells 

v. Commonwealth, 561 S.W.2d 85, 88 (Ky. 1978). Thus, a single jury 

instruction may combine multiple theories "so long as there is sufficient 

evidence of each [theory]." Travis v. Commonwealth, 327 S.W.3d 456, 459-460 

(Ky. 2010). 

22 
We now examine the sufficiency of the evidence supporting each of the 

three theories contained in the wanton murder jury instruction sub judice. 

. "Beating" 

The evidence supported the theory that Joy may have committed wanton 

murder by causing Michaela's fatal chest injury or contributing to her death by 

beating her. Dr. Rolf testified that Michaela's chest injury was caused by a 

blunt, firm, and crushing force as Michaela's back remained supported against 

a hard surface. She also testified that the various blunt impact injuries to 

Michaela's head, trunk, and extremities could have contributed to her death. 

In Joy's final police interview, she admitted that, on the morning of the day 

Michaela died, she and Michaela "got into a tussle" on the floor during which 

Joy placed her entire body weight upon Michaela to in order to restrain her as 

Joy punched her head. Joy admitted that she inflicted the bruising and stated 

that it was not Patrick's fault. 

b. "Scalding" 

The evidence supported the theory that Joy may have committed wanton 

murder by burning Michaela. 12As stated above, Dr. Rolf's testified that her 

examination revealed burns covering a "large amount of the [victim's] body 

surface area;" and furthermore; Dr. Rolf stated that "with the removal of the 

skin, a person someone can become infected and die easily—very quickly." 

12As stated above, Dr. Rolf testified that "with the removal of the skin a person can 

become infected and die easily—very quickly—if it's not treated." 

23 
Joy admitted ordering Michaela to bathe and being present upstairs with 

her at times during her bath. Taken with the fact that substantial forensic 

evidence showed that Michaela's burns were not self-inflicted but were the 

product of being held in three to four inches of nearly boiling hot water, the 

evidence was sufficient to give rise to a reasonable inference that Joy was not 

being entirely truthful and may have burned Michaela. 

c. "Failing to Seek Medical Treatment or Aid" 

The evidence supported the theory that Joy may have committed wanton 

murder by failing to seek medical treatment or aid for injuries she inflicted. A 

review of Appellants' police statements reveals that Joy explicitly admitted that 

she had individually failed to take Michaela to a doctor or hospital, knowing 

that she was seriously ill or injured. Dr. Rolf concluded that all of Michaela's 

injuries could have been treated had she been given proper medical support. 

Therefore, we hold that there was sufficient evidence to support this theory of 

wanton murder. 

In an incomplete sub-argument, Joy claims that the trial court erred in 

failing to instruct the jury on whether she had a duty to seek medical 

treatment. She contends that legal duty is an element in failing to provide 

medical care, and attempts to draw a parallel to a deadly weapon jury 

instruction.' 3According to Joy, it is error for a court not to instruct the jury 

that it must first find a gun operable before concluding that it was a deadly 

13 Thacker v. Commonwealth, 194 S.W.3d 287 (Ky. 2006). This is the only case Joy 

cites in support of her argument. 

24 
weapon, just as it was error for the court here to fail to instruct on her duty to 

provide medical care. We disagree and find Joy's analogy inapt. 

This section of the jury instruction presented a theory of her wanton 

conduct—causing Michaela's death by failing to treat her resulting injuries 

(injuries Joy inflicted). As such, duty to treat is not an element of the offense; 

failure to treat was merely a theory of how Joy's conduct in causing Michaela's 

death rose to the level of wanton murder. Consequently, our inquiry, as 

detailed above, is whether there was sufficient evidence of this theory to 

support the jury's verdict, an inquiry we previously answered in the affirmative. 

D. Change of Venue 

Joy argues that the trial court erred by denying a change of venue due to 

pretrial publicity. It appears that Joy never filed a motion seeking change of 

venue, but rather "she agreed with Patrick Watkins' motion for a change of 

venue and adopted his assertions." Regardless of the dubious preservation, we 

find no error. 

On April 14, 2008, Patrick filed a motion for a change of venue on 

grounds that a fair trial could not be had in Clark County due to prejudicial 

media attention and, in the alternative, requested individual voir dire on the 

effect of publicity. In support of the motion, he highlighted numerous 

newspaper articles documenting Michaela's death and the subsequent 

investigation. For example, on March 13, 2007, the Lexington Herald-Leader 

published a front page article, entitled "Neighbors Describe Dead Girl's Chronic 

25 
Abuse." The article claimed that Michaela was an unhappy child and that 

several neighbors and relatives stated that Appellants routinely belittled and 

cursed the child, including a statement by Joy's grandmother that she had 

once witnessed Patrick smash Michaela's fingers on a table. On March 15, 

2007, the Winchester Sun carried a front page photograph of Michaela and a 

makeshift memorial, stating that Appellants had been charged with murder 

and that they had given inconsistent statements. In all, at least forty stories 

appeared in the local media. 14 

On April 25, 2008, Patrick filed a supplemental motion for a change of 

venue. Therein, he described a memorial service that was held on the 

courthouse lawn on April 17th for child abuse victims. Several Clark County 

residents attended and, during the service, decorative angels representing 

abused children were placed on the lawn and left there for a number of days. 

Two children were selected from the victims to represent the group, one of 

which was Michaela. People who knew the two children spoke at the service 

and balloons of Michaela's favorite color were flown at the scene to 

commemorate her. WKYT of Lexington reported on the service and, on the 

14The motion also made much of the fact that the Grand Jury had attached a 

statement to its report acknowledging the crime's disturbing nature, which, in its 

entirety, read: 

The most profound cases involved crimes of violence and neglect, 

particularly when the victims are young and helpless. We are appalled 

that some members of our community were capable [sic] causing such 

great harm. Notwithstanding the horror of the case where a young girl 

lost her life we were impressed by the response of law enforcement. 

Winchester Police Detective James Hall has earned our collective respect 

and appreciation for the way he conducted the investigation into the 

death of Michaela Watkins. 

26 
following day, the Winchester Sun headlined the story, carrying Michaela's 

picture and describing her cause of death. 

On May 1, 2008, the trial court held one of two hearings on the motion. 

Though the trial court concluded that the facts of the case would likely lead 

any person to naturally conclude that it was a heinous offense, the court was 

troubled by recent events and stated: 

When I came here to court this morning, the first thing I did at 

7:30 and [sic] go out front and . . . there were all the angels of the 

child victims. . . . And I certainly don't criticize in any fashion any 

memorial service for the victims, particularly child victims of crime. 

I think it is entirely proper as all of us know April was child abuse 

prevention month throughout the Commonwealth of Kentucky. 

These types of memorial services are held probably in most every 

county. I think it was extremely unfortunate that this service took 

place on the front steps of the courthouse less than three weeks 

from the day this trial was to occur. . . . I think it would be 

virtually impossible to expect that you can get a jury of people that 

were not affected by that, particularly when they walk through the 

front door of the courthouse and look on both sides of the main 

entrance at the ribbons and the individual angels that are there 

and have been there two weeks today. 

As a result, the trial court granted a continuance and stated that it would 

consider a change of venue. 

The court subsequently denied the motion for change of venue and 

expressed its desire to try to seat an impartial jury. The court reserved ruling 

on the possibility for individual voir dire, as it intended to conduct extensive 

questioning regarding pretrial publicity. 

The trial began on September 2, 2008. The court opened by stating to 

the jury pool that many had probably heard about the case but those who had 

27 
formed feelings or opinions would likely be unable to hear the case. At the 

court's request, several jurors approached the bench who felt they could not 

fairly hear the evidence where they were questioned by the trial court and 

counse1. 15.As a result, out of the eighty-four potential jurors called, the trial 

court was forced to excuse fifteen (18%) for cause. 

"In Kentucky, the right to an impartial jury is protected by Section 11 of 

the Kentucky Constitution, as well as the Sixth and Fourteenth Amendments 

to the [United States] Constitution." Fugett v. Commonwealth, 250 S.W.3d 604, 

612 (Ky. 2008); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961) ("In essence, 

the right to jury trial guarantees to the criminally accused a fair trial by a panel 

of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing 

violates even the minimal standards of due process.") (citations omitted). 

Though "[i]t is not required . . . that the jurors be totally ignorant of the facts 

and issues involved" to be impartial, Irvin, 366 U.S. at 722, a juror must have a 

"mental attitude of appropriate indifference" - a state of mind for which there is 

no precise test or formula. Id. at 724-25. 

A corollary to the right to an impartial jury is that a change of venue may 

be constitutionally required where the jurors' "minds [are] ineradicably 

poisoned" by prejudicial publicity. Jacobs v. Commonwealth, 870 S.W.2d 412, 

416 (Ky. 1994); see Wilson v. Commonwealth, 836 S.W.2d 872, 888 (Ky. 1992) 

15Appellants did not object to the trial court's questioning nor did they renew their 

request for individual voir dire. We, therefore, only address the issue of venue. See 

Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971) ("[I]f an objection is made, 

the party making the objection must insist that the trial court rule on the objection, 

or else it is waived."). 

28 
("[A] change of venue should be granted if it appears that the defendant cannot 

have a fair trial in the county wherein the prosecution is pending.") (citing 

Brewster v. Commonwealth, 568 S.W.2d 232 (Ky. 1978)); McCleskey v. Kemp, 

481 U.S. 279, 310 n.30 (1987) ("Widespread bias in the community can make a 

change of venue constitutionally required.") (citing Irvin, 366 U.S. at 717). 16In 

order to justify a change of venue on these grounds, a defendant must show 

that "there is a reasonable likelihood that the accounts or descriptions of the 

investigation and judicial proceedings have prejudiced" him, though it is not 

enough "that jurors may have heard, talked, or read about a case." Brewster, 

568 S.W.2d at 235; see also Wilson, 836 S.W.2d at 888 ("In order for a change 

of venue to be granted there must be a showing that: 1) There has been 

prejudicial news coverage, 2) It occurred prior to trial, and 3) The effect of such 

news coverage is reasonably likely to prevent a fair trial."). 17 

However, we note that "a showing of actual prejudice is unnecessary if 

the procedure involves such a probability that prejudice will result that it is 

deemed inherently lacking in due process" - i.e., where the prejudice is implied 

or presumed from the totality of the circumstances. Brewster, 568 S.W.2d at 

235 (citing Estes v. Texas, 381 U.S. 532 (1965)). Though we have not always 

16We note that less drastic approaches may suffice to remedy the risk of prejudicial 

publicity. See Groppi v. Wisconsin, 400 U.S. 505, 510 (1971) ("One way to try to 

meet the problem is to grant a continuance of the trial in the hope that in the 

course of time the fires of prejudice will cool. . . . Another way is to provide a 

method of jury qualification that will promote, through the exercise of challenges to 

the venire - preemptory and for cause - the exclusion of prospective jurors infected 

with the prejudice of the community from which they come."). 

17The often quoted three-part test from Wilson appears simply an elemental summary 

of our previous holding in Brewster. 

29 
carefully reiterated the distinction, "there is clearly established Supreme Court 

[of the United States] precedent distinguishing between cases involving 

presumed prejudice - when the setting of the trial [is] inherently prejudicial, - 

and actual prejudice - when review of both the jury voir dire testimony and the 

extent and nature of the media coverage indicates a fair trial [was] impossible." 

Joseph v. Coyle, 469 F.3d 441, 468 (6th Cir. 2006) (internal quotation marks 

omitted) (quoting Nevers v. Killinger, 169 F.3d 352, 364 (6th Cir. 1999)) 

(abrogated on other grounds by Harris v. Stovall, 212 F.3d 940, 942-43 (6th Cir. 

2000)); see Murphy v. Florida, 421 U.S. 794, 788-89 (1975) (contrasting Irvin, a 

case of actual prejudice, to Rideau v. Louisiana, 373 U.S. 723 (1963), Estes, 

and Sheppard v. Maxwell, 384 U.S. 333 (1966), where prejudice was 

presumed); see also Nevers, 169 F.3d at 362-64 (same); see generally Skilling v. 

United States, 130 S.Ct. 2896 (2010). 

A change of venue determination is especially appropriate for the trial 

court's discretion. See Stopher v. Commonwealth, 57 S.W.3d 787, 795 (Ky. 

2001) ("It is readily acknowledged . . . that wide discretion is, and should be, 

vested in the trial court when determining a change of venue question.") (citing 

Jacobs, 870 S.W.2d at 412). We have explained that "[g]reat weight is given to 

the trial court's decision because the judge is present in the county and is 

presumed to know the situation." Id. (citing Nickell v. Commonwealth, 371 

S.W.2d 849 (Ky. 1963)); accord Mu'Min v. Virginia, 500 U.S. 415, 427 (1991) 

("Particularly with respect to pretrial publicity, we think this primary reliance 

30 
on the judgment of the trial court makes good sense. The judge of that court 

sits in the locale where the publicity is said to have had its effect and brings to 

his evaluation of any such claim his own perception of the depth and extent of 

news stories that might influence a juror."). 

Turning to the merits of Joy's allegations, after examining the totality of 

the circumstances, we do not believe that the trial setting was inherently 

prejudicial. See Nevers, 169 F.3d at 362 ("One type of prejudice is . . . [where] 

the 'circumstances under which the trials . . . were held' were such that 

inherent prejudice to the venire should be presumed.") (quoting Murphy, 41 

U.S. at 798-99). While we agree that the facts of the case were, indeed, 

heinous and even disturbing, the ensuing publicity was neither so prolific or 

prejudicial in nature so as to give rise to a presumption of prejudice. Cf. 

Rideau, 373 U.S. at 724 (defendant's confession televised and seen by as many 

as 97,000 people in a community of 150,000, rendering "[ajny subsequent 

court proceedings in a community so pervasively exposed to such a spectacle . 

.. a hollow formality"); Sheppard, 384 U.S. at 353-58 (sensational and 

inflammatory reporting prior to and during a trial where "the judge gave the 

throng of newsmen gathered in the corridors of the courthouse absolute free 

rein"); Murphy, 421 U.S. at 799 (describing the Estes trial as one "conducted in 

a circus atmosphere, due in large part to the intrusions of the press, which was 

allowed to sit within the bar of the court and to overrun it with television 

equipment"). While it is true that at least one media account, if not more, 

31 
identified prior acts of mistreatment or abuse, this fact, taken alone, does not 

give rise to an inference of prejudice per se. See Murphy, 421 U.S. at 799 

(rejecting the idea that "juror exposure to information about a state defendant's 

prior convictions . . . alone presumptively deprives the defendant of due 

process"). And while the April 17th memorial service has given this Court 

pause, we conclude that the trial court, in its sound discretion, rightly 

dismissed it. There is no indication that the service itself was intended to be, 

or was, anything more than a legitimate commemoration of Michaela and other 

child abuse victims brought about not by an acute disgust toward Appellants, 

but by the month of April, representing child abuse prevention month. Cf. 

Jacobs, 870 S.W.2d at 415 ("The force of adverse publicity gave impetus to the 

excitement and fostered prejudice among the people of the community. In fact, 

one of the public fund raising events to aid in Jacobs' prosecution raised 

$2,922."). To be sure, there is also no indication that any remnants of the 

memorial persisted on the courthouse lawn beyond the month of May, let alone 

into the time of the September trial. 

Moreover, Joy has not demonstrated a reasonable likelihood that the 

pretrial publicity actually prejudiced the venire. See Nevers, 169 F.3d at 363 

("The other type of prejudice . . stands for the proposition that absent the 

`televised confession amounting to a trial' or 'carnival atmosphere' situations, 

pretrial publicity that would inherently prejudice the jury pool can be discerned 

only by reviewing both the extent and nature of the publicity and the responses 

32 
of the prospective jurors in voir dire."). Setting aside what we believe was, 

given the tragic nature of the case, an unsurprising amount of unremarkable 

publicity, we find it significant that only fifteen (18%) of the eighty-four 

potential jurors had to be excused for cause due to bias or preconceptions of 

Appellants' guilt. This is a figure that falls far short of that usually incident to 

a finding of prejudice. In reversing the defendant's conviction in Jacobs, this 

Court found "ominous" that 74% (112 of 153) of the jury pool had to be 

excused for cause due to "fixed opinions of guilt." 870 S.W.2d at 415-16. 

Similarly, in Irvin, the trial court was forced to excuse for cause 62% (268 of 

430) of the panel. 366 U.S. at 727. Though not dispositive, it is noteworthy 

that this Court has affirmed convictions with a significantly higher rate of 

excusal than that presented here. See, e.g., Stopher, 57 S.W.3d at 796 (40% 

excused for cause). Finally, we note that Joy does not make any contention 

that the trial court erred in failing to excuse for cause biased jurors, 18or that 

any such jurors remained on the panel that decided their case. Cf. Jacobs, 870 

S.W.2d at 415 ("Of 38 jurors who were accepted by the court, 19 had an initial 

18Joy does not argue that the trial court abused its discretion in failing to excuse for 

cause certain jurors. See generally Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 

2007). While it is true, as Joy suggests, that a prospective juror (#69) had formed 

an opinion in the case, a review of the strike sheets reveals that the juror was 

apparently excused prior to defense counsel's voir dire. We have also reviewed Joy's 

related allegation that, when asked by defense counsel, only one juror in the panel 

indicated they could presume Joy's innocence, and believe it similarly without 

merit. Defense counsel asked the panel to "please raise your hands if you think Joy 

Watkins is not guilty" and, after only one juror raised his or her hand, defense 

counsel moved to strike the entire panel on grounds that they could not presume 

innocence. After a bench conference, the motion was rightly overruled due to the 

fact that the question was inaccurately phrased. When defense counsel 

subsequently rephrased the question, there was no indication that the jurors could 

not presume Joy's innocent. 

33 
opinion that Jacobs was guilty. Of those 19 jurors, four sat on the panel that 

decided the case."); Irvin, 366 U.S. at 727 ("Here the 'pattern of deep and bitter 

prejudice' shown to be present throughout the community . . . was clearly 

reflected in the sum total of the voir dire examination of a majority of the jurors 

finally placed in the jury box. Eight out of the 12 thought petitioner was 

guilty.") (citation omitted). 

E. "Irrelevant" Evidence 

1. Credit Card Reference 

Joy next argues that the Commonwealth's reference at trial to obtaining 

a credit card in the name of Michaela was irrelevant and represented 

impermissible character evidence under KRE 404(b). 

While cross-examining Ashley Clem, the social worker that performed the 

out-of-county home evaluation on the Watkinses, the Commonwealth 

attempted to question her regarding a credit card bill issued to Appellants in 

the name of Michaela. Before the Commonwealth could proceed, defense 

counsel objected and argued that Clem lacked personal knowledge of the 

matter, that the bill could not be authenticated, and that it represented 

hearsay. The trial court sustained the objection and prohibited introduction of 

the credit card bill but permitted the Commonwealth to ask Clem whether she 

would have approved a child's placement had the prospective parents applied 

for a credit card in the child's name. The Commonwealth proceeded, where 

Clem responded that she would not have approved such a placement. 

34 
Joy made no other objection and requested no further relief; and 

consequently, failed to preserve error. As this Court has often repeated,. an 

appellant is "not . . . permitted to feed one can of worms to the trial judge and 

another to the appellate court." Neal v. Commonwealth, 95 S.W.3d 843, 848 

(Ky. 2003) (citing Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky. 1976)); see 

also Craig v. Dean, 741 S.W.2d 655, 657 (Ky. 1987) ("If a party chooses to state 

grounds in the absence of a request from the court, he is bound thereby."). On 

this issue, Joy does not request palpable error review, thus we do not address 

it further. Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008) 

("Absent 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.") 

(citations omitted). 

2. Admission of Table Leg 

Finally, Joy alleges that it was palpable error to admit into evidence a 

wooden table leg found in Appellants' car because the forensic evidence was 

unable to establish whether it was actually used to inflict Michaela's chest 

injury. She points out that: no usable prints or fibers were found on the table 

leg indicating that it was used to strike Michaela; the bruise pattern on 

Michaela's chest appeared larger than the table leg's actual diameter; and, the 

medical examiner was unsure what instrument, if any, caused the injury. She 

argues that she was prejudiced by its admission because the Commonwealth 

35 
asserted that the table leg was the likely murder weapon. 

Having reviewed Joy's argument, we find no palpable error. According to 

Dr. Hamon, the table leg found in Appellants' car could have been used to 

inflict Michaela's chest injury, even though Dr. Rolf testified that a number of 

different objects could have caused it. This is sufficient. 

E. Patrick's Allegations of Error Likely to Recur on Retrial 

We briefly address several of Patrick's allegations to the extent that they 

are likely to recur on retrial. First, we must again remind the trial court that 

combination jury instructions are only appropriate when there is evidence to 

support each distinct theory of culpability. See Benjamin v. Commonwealth, 

266 S.W.3d 775, 785 (Ky. 2008) (stating that "if the trial judge finds that the 

evidence is unlikely to support a combination instruction, the court should 

include separate verdict forms, and if the evidence suffices, the court may use 

a combination instruction which permits the jury to distinguish upon which 

theory it bases its findings."). Next, to the extent that the Commonwealth 

seeks to utilize the reports prepared by the dentist, neuropathologist, and/or 

the toxicologist, pursuant to Melendez-Diaz, Patrick's constitutional rights 

permit him to cross-examine the authors of the accusatory reports. That Dr. 

Rolf was present when these reports were prepared does not make this any less 

violative of the Sixth Amendment. Finally, the credit card evidence does not 

appear relevant to a murder prosecution, and likely runs afoul of the rules 

prohibiting character evidence. KRE 404. 

36 
III. CONCLUSION 

Therefore, for the above stated reasons, we hereby affirm Joy Watkins' 

conviction, but we reverse Patrick Watkins' conviction and remand to the trial 

court for proceedings consistent with this opinion. 

All sitting. Minton, C.J.; Abramson, Cunningham, Schroder, Scott, and 

Venters, JJ., concur. Noble, J., concurs in result only. 

COUNSEL FOR APPELLANT, JOY RENEE WATKINS: 

Kathleen Kallaher Schmidt 

Appeals Branch Manager 

Department of Public Advocacy 

100 Fair Oaks Lane, Suite 302 

Frankfort, KY 40601-1109 

COUNSEL FOR APPELLANT, PATRICK ALLEN WATKINS: 

Roy Alyette Durham, II 

Assistant Public Advocate 

Department of Public Advocacy 

100 Fair Oaks Lane, Suite 302 

Frankfort, KY 40601 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General of Kentucky 

Perry Thomas Ryan 

Assistant Attorney General 

Office of Attorney General 

Criminal Appellate Division 

1024 Capital Center Drive 

Frankfort, KY 40601-8204 

37