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March 19, 2026 Get Citation Alerts Download PDF Add Note

Marsha Lynn Miller v. Commonwealth of Kentucky

Kentucky Supreme Court

• Citations: None known
• Docket Number: 2024-SC-0305
• Precedential Status: Non-Precedential

• Disposition: MEMORANDUM OPINION OF THE COURT AFFIRMING

• Opinion

• Authorities (26)

• Cited By (0)

• Summaries (0)

• Similar Cases (55K)

• PDF

Disposition

MEMORANDUM OPINION OF THE COURT AFFIRMING

Combined Opinion

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS
OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR
CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN
UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A
COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG
WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO
THE ACTION.
RENDERED: MARCH 19, 2026
NOT TO BE PUBLISHED

Supreme Court of Kentucky
2024-SC-0305-MR

MARSHA LYNN MILLER APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE KATHLEEN LAPE, JUDGE
NO. 21-CR-00258

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Marsha Lynn Miller (“Miller”) was convicted of one count of murder and

was sentenced to thirty years of imprisonment. After careful review, we affirm.

BACKGROUND

On March 29, 2021, Miller left her home after smoking Delta-8, a

genetically modified derivative of marijuana. Miller had not eaten much that

day and did not feel well, so she went out to get something to eat. Miller

claimed she felt dizzy, so she turned into a parking lot. Video surveillance

captured much of what happened next. Frank Harris (“Harris”), the victim,

walked alone across the mostly empty parking lot toward the road and

sidewalk until he was just offscreen. Miller’s black sedan pulled into the lot,

made a U-turn, and accelerated as she drove toward Harris. Once offscreen,

the surveillance footage captured the sound of a collision and the screech of
tires coming to a halt. A witness told the jury that Harris’s body flew ten feet

into the air after Miller hit him. Harris died because of the collision.

That night, police interviewed Miller. She asserted she did not see Harris

until she hit him. Before trial, Dr. Timothy Allen (“Dr. Allen”) from the

Kentucky Correctional Psychiatric Center (KCPC) evaluated Miller for

competency to stand trial and testified at a competency hearing. Miller told Dr.

Allen that she did not remember hitting Harris. Dr. Paul Ebben (“Dr. Ebben”),

Miller’s own mental health expert, interviewed Miller to establish that she was

not criminally responsible for killing Harris. Miller told Dr. Ebben she

hallucinated that a man in black told her to hit Harris and believed Harris

himself was a hallucination. Dr. Ebben is the only witness Miller told that she

hallucinated.

There was also trial testimony regarding Miller’s medical history. Miller

was diagnosed as deaf at sixteen months old. Her language development was

slow. Miller was diagnosed with unspecified depression, unspecified psychosis

(sometimes referred to as unspecified schizophrenia), bipolar disorder,

cannabis use disorder, and borderline intellectual functioning. During her

police interview, Miller stated she was nearsighted and needed glasses but

could not afford them. Miller frequently smoked Delta-8.

Miller did not testify on her own behalf at trial.

The jury convicted Miller of murder, and she was sentenced to thirty

years in accordance with the jury’s recommendation. This appeal followed.

2
On appeal, Miller argues the trial court: (1) abused its discretion in

allowing the Commonwealth to cross-examine Dr. Allen regarding her criminal

responsibility; (2) palpably erred in allowing the Commonwealth to introduce

medical records during Dr. Allen’s testimony and failing to admonish the jury;

(3) abused its discretion in prohibiting Dr. Ebben from testifying at trial; and

(4) erred in failing to instruct the jury on reckless homicide.

ANALYSIS

I. The trial court did not abuse its discretion in allowing the
Commonwealth to cross-examine Dr. Allen on Miller’s criminal
responsibility.

First, Miller argues the trial court abused its discretion in allowing the

Commonwealth to cross-examine Dr. Allen regarding Miller’s criminal

responsibility. Miller argues this was a breach of the requirement in Conley v.

Commonwealth, 599 S.W.3d 756 (Ky. 2019), that the KCPC evaluator be

“walled off” and precluded from testifying as the Commonwealth’s rebuttal

expert at trial. Id. at 770. In Conley, the trial court initially denied the

defendant funds to retain a mental health expert and instead ordered a KCPC

evaluation. Id. at 762. After the trial court received KCPC’s report, it reversed

its initial ruling and held that the defendant “was entitled to an independent

mental health expert” and authorized funds to retain one. Id. The

Commonwealth then “invoked its right to a mental health expert to contest [the

defense expert’s] findings and opinions.” Id. The trial court “resolved the

Commonwealth's request for an expert witness by effectively repurposing [the

KCPC doctor] from her initial role as Conley's witness to the new role of being

3
the Commonwealth's witness.” Id. Thus, the KCPC evaluator switched sides

“and became a witness against Conley.” Id.

This Court held “the trial court abused its discretion by refusing to grant

Conley’s initial motion for mental health expert witness funding and instead

sending her to KCPC.” Id. at 766. The Court reasoned that “[t]he expert witness

appointed under KRS 1 504.100 for a competency to stand trial evaluation at

KCPC does not ‘belong’ to the defendant, but rather the expert acts as an agent

of the trial court.” Id. at 769; see also Gabbard v. Commonwealth, 887 S.W.2d

547, 550 (Ky. 1994). Conversely, “a mental health expert to which an indigent

defendant may be entitled under [Ake v. Oklahoma, 470 U.S. 68 (1985)] . . .

may accurately be described as ‘belonging’ to the defendant, unlike the

evaluator acting as an agent of the trial court in a competency to stand trial

proceeding.” Id. If the trial court determines “the defendant is entitled to an

expert under Ake, and the Commonwealth then seeks to retain KCPC to

provide the prosecution with a rebuttal mental health expert,” Ake compels “a

second KCPC evaluator be assigned to act as the Commonwealth’s expert

witness and, to the extent practicable, the initial KCPC evaluator and

evaluation should be “walled off” from the second evaluator who may then

serve as the Commonwealth's expert at trial.” Id. at 770. Following this

procedure ensures that “an indigent defendant be equalized with a person of

means defendant as required under Ake.” Id.

1 Kentucky Revised Statutes.

4
At trial, Miller asserts that she questioned Dr. Allen in accordance with

her notice. She asserts that on direct examination, his testimony remained

within the confines of Conley. However, she argues his cross-examination

testimony breached the Conley wall when the Commonwealth elicited Dr.

Allen’s opinion that Miller appreciated the criminality of her actions. Miller

omits that her notice also acknowledged that Dr. Allen could testify on subjects

raised by the Commonwealth on cross-examination.

Miller called Dr. Allen to explain Miller’s mental illness to the jury in

support of her insanity defense. During direct examination, Dr. Allen testified

that Miller was competent to stand trial but suffered from unspecified

psychosis with a history of paranoia, depression, and cannabis-use disorder.

He believed her psychosis may have been caused or exacerbated by drug use.

Defense counsel did not ask Dr. Allen if Miller was legally insane, but during

the closing argument, counsel used Dr. Allen’s testimony to convince the jury

that Miller was legally insane.

However, on cross-examination, Dr. Allen testified that he only evaluated

Miller for competency and did not evaluate Miller for insanity at the time of the

incident. The burden rests on the defendant “to prove to the satisfaction of the

jury that at the time the offense was committed, as a result of a mental disease

or defect, [she] lacked substantial capacity either to appreciate the criminality

of [her] conduct or to conform [her] conduct to the requirements of law.” Star v.

Commonwealth, 313 S.W.3d 30, 34 (Ky. 2010) (quoting Edwards v.

Commonwealth, 554 S.W.2d 380, 383 (Ky. 1977); KRS 504.020)).

5
There was no breach of the Conley walling-off requirement here. Conley

prohibits the Commonwealth from using the KCPC evaluator or the report as

rebuttal evidence against the defendant and requires that both the defendant

and the Commonwealth obtain separate mental health experts to testify at

trial. Id. at 770. It is undisputed that Miller and the Commonwealth each had

their own expert witnesses available to testify at trial. Miller called the initial

KCPC evaluator to testify at trial, not the Commonwealth. Prior to trial, Miller

provided notice that she would call Dr. Allen to testify regarding his diagnostic

impressions of her and to testify that she was diagnosed with unspecified

psychosis. The notice of Dr. Allen’s testimony excluded any opinion regarding

her culpability. After this notice, the Commonwealth informed the trial court

that it would not call its retained expert to rebut Dr. Ebben’s opinion.

Miller made no argument here or below that this was an improper topic

for cross-examination under the rules of evidence because cross-examination

on Miller’s criminal responsibility was clearly permissible. KRE 2 611(b)

provides: “A witness may be cross-examined on any matter relevant to any

issue in the case, including credibility. In the interests of justice, the trial court

may limit cross-examination with respect to matters not testified to on direct

examination.” The scope of “cross-examination is ‘wide open[,]’” but it “is

subject to the reasonable discretion of the court.” Conley, 599 S.W.3d at 780.

In raising an insanity defense, Miller opened the door to the Commonwealth’s

2 Kentucky Rules of Evidence.

6
cross-examination on her criminal responsibility. Though defense counsel did

not directly ask Dr. Allen if Miller was not criminally responsible for her actions

when she struck the victim with her car, defense counsel used Dr. Allen’s

testimony regarding Miller’s psychiatric diagnoses to support her insanity

defense. Thus, the trial court did not abuse its discretion in allowing the

Commonwealth to cross-examine Dr. Allen on Miller’s criminal responsibility.

Conley is inapplicable.

II. The trial court did not palpably err in allowing the Commonwealth to
introduce the medical and school records during Dr. Allen’s cross-
examination or in failing to admonish the jury.

Second, Miller argues she was prejudiced by the trial court’s failure to

provide Miller the safeguards of KRE 703 when it failed to make the required

findings and admonish the jury under KRE 703(b) regarding medical records

that came in through Dr. Allen’s testimony. As explained below, this argument

was not properly preserved, so we review for palpable error.

During Dr. Allen’s cross-examination, the Commonwealth moved to

admit Miller’s school and medical records used in compiling his report. The

Commonwealth also moved to admit medical records only reviewed by Dr.

Ebben, the defense expert, in compiling his report. Dr. Allen saw those records

for the first time during cross-examination because Miller did not provide them

for her competency evaluation. Miller objected to the entry of medical records.

Defense counsel’s objection to the records reviewed by Dr. Allen was not

specific and was based on her belief that there was an evidentiary rule about

7
the extent to which witnesses can testify about specific records reviewed. She

did not request specific findings or an admonition at that time.

Later, defense counsel objected when the Commonwealth introduced

hospital records that Dr. Allen did not have when preparing his report, but that

Dr. Ebben used only in compiling his report. Miller argued that those records

were outside the scope of what Dr. Allen could testify to because they were not

used in compiling his report. Dr. Allen did not review them prior to trial

because Miller did not provide them to him. Again, Miller failed to make a

contemporaneous objection on KRE 703(b) grounds.

Although the records were admitted through Dr. Allen’s testimony on the

third day of trial, Miller waited until the fifth day of trial to make an oral

objection on KRE 703 grounds. 3 The trial court took Miller’s objection under

advisement. Based on our review of the record, the trial court did not rule on

this motion.

The trial court’s failure to rule on Miller’s late objection is immaterial

because objections must be contemporaneous and specific to preserve a claim

of error. RCr 9.22, the contemporaneous objection rule, requires counsel to “at

the time the ruling or order of the court is made or sought, makes known to the

court the action which that party desires the court to take or any objection to

the action of the court, and on request of the court, the grounds therefor.”

Preservation of an issue not raised in a detailed motion in limine requires

3 The trial court heard no testimony on the fourth day of trial because Miller’s

final witness, Dr. Ebben was unavailable that day.

8
defense counsel to make a specific, contemporaneous objection because “the

trial judge cannot be expected to . . . infallibly recognize the point at which . . .

evidentiary boundaries have been crossed and respond sua sponte with an

unsolicited ruling.” MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 332 (Ky.

2014).

Though Miller made vague objections on hearsay grounds during Dr.

Allen’s testimony, Miller waited two trial days to make a specific objection

under KRE 703(b) and request findings and an admonition. Given that defense

counsel made earlier objections, she had the opportunity to object under KRE

703(b) and request an admonition sooner but failed to do so. See Clay v.

Commonwealth, 291 S.W.3d 210, 220 (Ky. 2008). As such, Miller’s argument is

unpreserved, so we review only for palpable error under RCr 10.26.

In reviewing for palpable error, this court will only reverse the judgment

if “the error is so manifest, fundamental and unambiguous that it threatens

the integrity of the judicial process.” Johnson v. Commonwealth, 676 S.W.3d

405, 417 (Ky. 2023) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky.

2006)). “It should be so egregious that it jumps off the page . . . and cries out

for relief.” Id. (quoting Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky.

2012)).

KRE 703(b) allows otherwise inadmissible evidence to come in “‘[i]f

determined to be trustworthy, necessary to illuminate testimony, and

unprivileged,’ to explain the basis of an expert’s opinion.” Hoff v.

9
Commonwealth, 394 S.W.3d 368, 374 (Ky. 2011) (quoting KRE 703(b)). KRE

703 provides:

(a) The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.

(b) If determined to be trustworthy, necessary to
illuminate testimony, and unprivileged, facts or data
relied upon by an expert pursuant to subdivision (a)
may at the discretion of the court be disclosed to the
jury even though such facts or data are not admissible
in evidence. Upon request the court shall admonish
the jury to use such facts or data only for the purpose
of evaluating the validity and probative value of the
expert's opinion or inference.

(c) Nothing in this rule is intended to limit the right of
an opposing party to cross-examine an expert witness
or to test the basis of an expert's opinion or inference.

In Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020), this Court

explained the application of KRE 703:

Subsection (a), in relevant part, embodies the well-
established rule that experts are permitted to base
their opinions on facts and data that are not otherwise
admissible in evidence, if they are of a type reasonably
relied upon by other experts in their field. Stated
differently, the facts and data that an expert relies
upon in forming his or her opinion do not need to be
admissible in order for the expert's opinion itself to be
admissible. Subsection (b) provides that if an expert
relied on otherwise inadmissible evidence in forming
their opinion, that evidence can come in as a means to
challenge the validity and probative value of that
expert's opinion. However, that evidence may only be
admitted if the trial court determines that the evidence
was “trustworthy, necessary to illuminate testimony,
10
and unprivileged.” Subsection (c) is self-explanatory:
nothing in KRE 703(a) or (b) is meant to limit the
ability of an opposing party to cross-examine or
challenge the basis of an expert's opinion.

Id. at 899 (footnote omitted).

The Commonwealth was permitted to cross-examine Dr. Allen on the “full

limits of the dispute” under KRE 703(c). Commonwealth v. Armstrong, 556

S.W.3d 595, 600 (Ky. 2018); KRE 611. As in Exantus, cross-examination on

Miller’s insanity “itself was permissible” because she raised an insanity

defense. Exantus, 612 S.W.3d at 901. The trial court had the discretion to

permit disclosure to the jury of facts or data made known to an expert “at or

before the hearing.” KRE 703(a) and (b). Because Miller failed to make a timely

objection and request for an admonition under KRE 703(b) the trial court did

not make the requisite findings or exercise its discretion to admonish the jury.

Though failure to make the requisite findings of whether the medical

records were “trustworthy, necessary to illuminate testimony, and not

privileged” under KRE 703(b) is technically erroneous, the error was not

palpable. We cannot say that the trial court’s failure to make said findings was

so egregious that it affected the fairness of her proceedings. Brewer v.

Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Thus, the trial court did not

palpably err in failing to make the requisite findings prior to permitting

disclosure of the medical records to the jury.

The only remaining question is whether the trial court palpably erred in

failing to admonish the jury when the request was not made

11
contemporaneously. Although KRE 703(b) states that a trial court shall

admonish the jury when one is requested, Miller’s request was untimely.

Miller argues she was prejudiced by the admission and the trial court’s

failure to admonish the jury because the Commonwealth engaged Dr. Allen in a

lengthy review of the records, and its closing argument made multiple

references to the records to prove Miller’s intent to kill. Miller further argues

that the Commonwealth’s reliance on these records substantially influenced

the jury to find her guilty of intentional murder instead of a lesser mens rea or

was not guilty by reason of insanity.

Based on our review, the trial court’s failure to admonish the jury was

not so great as to affect the outcome of Miller’s trial. The evidence of her guilt

was overwhelming. Miller admitted to killing Harris. The only issue in dispute

was her mental state at the time of the incident. It is undisputed that Miller

slowly pulled into the parking lot and accelerated as she aimed her car toward

Harris. The jury could hear her revving the car engine as she sped toward him,

hear her car hitting his body, and his body landing on the ground after flying

up in the air.

During her interview with the police after the incident, Miller appeared to

be lucid. Miller’s only explanation for her actions was that she felt ill from

hunger and did not see Harris when she hit him. Miller did not mention

hallucinations in the interview. She did not express regret for hitting Harris.

Dr. Allen’s testimony did not support an insanity defense. He merely

evaluated Miller for competency, not insanity. He testified that during her

12
KCPC evaluation, Miller was not on any antipsychotic medication and showed

no signs of hallucinations. Miller only ever mentioned hallucinations when Dr.

Ebben interviewed her about the murder. The medical records introduced by

the Commonwealth during Dr. Allen’s cross-examination reinforced the

Commonwealth’s argument that Miller lacked any substantial history of

serious hallucinations.

The trial court had the discretion to disclose Miller’s medical records to

the jury even though it failed to make the requisite findings under KRE 703(b).

The evidence of her guilt was overwhelming, so the introduction of Miller’s

medical records through Dr. Allen’s cross-examination and lack of admonition

was not so significant as to impact the outcome of her trial. Thus, the trial

court did not palpably err in allowing the Commonwealth to introduce the

medical records or failing to admonish the jury.

III. The trial court did not abuse its discretion in excluding Dr. Ebben’s
testimony after he changed his diagnosis during his direct
examination.

Third, Miller argues the trial court abused its discretion in excluding Dr.

Ebben from testifying after he changed his diagnosis during direct

examination. “[A] trial court’s ruling on the admission of expert testimony

should not be disturbed unless there is an abuse of discretion.” Terry v.

Commonwealth, 332 S.W.3d 56, 60 (Ky. 2010) (citing Farmland Mut. Ins. Co. v.

Johnson, 36 S.W.3d 368, 387 (Ky. 2000)). “The test for abuse of discretion is

whether the trial judge’s decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v.

13
Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (quoting Commonwealth v. English,

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

Miller retained Dr. Ebben as an expert to evaluate her criminal

responsibility. Dr. Ebben’s report stated that he diagnosed her with

schizoaffective disorder. During his direct testimony, Dr. Ebben told the jury

his report stated Miller’s diagnosis as schizoaffective disorder, but he meant to

write that his diagnosis was unspecified schizophrenia. The trial court then

held an in camera hearing for Dr. Ebben to explain the discrepancy.

Dr. Ebben told the trial court that his diagnosis of unspecified

schizophrenia meant Miller suffered from either schizoaffective disorder or

bipolar disorder with psychosis. Dr. Ebben acknowledged schizophrenia and

schizoaffective disorder are two separate disorders. He believed the diagnosis

was likely schizoaffective disorder, but he was unsure. Dr. Ebben admitted that

if he were allowed to continue testifying, he would say Miller had unspecified

schizophrenia, which is not the same diagnosis as in his report. Miller

characterizes this mistake as a “typo.”

Miller argues the Commonwealth could have impeached Dr. Ebben, and

the jury should have been allowed to assess the weight of his testimony.

Additionally, she argues the Commonwealth declined to call its rebuttal expert

to testify at trial but instead cross-examined Dr. Allen to rebut Dr. Ebben.

Miller asserts Dr. Ebben’s opinion would have rebutted Dr. Allen’s cross-

examination, but she omits that she called Dr. Allen to testify. The

Commonwealth argues Dr. Ebben’s misstated diagnosis went beyond a mere

14
typo, and it did not receive proper notice of his testimony. The Commonwealth

argues it would be impossible for the jury to weigh Dr. Ebben’s testimony

because the Commonwealth could not effectively cross-examine Dr. Ebben due

to the surprise change in diagnosis.

RCr 7.24(3)(a) requires defense counsel to “furnish to the attorney for the

Commonwealth a written summary of any expert testimony that the defense

intends to introduce at trial. This summary must identify the witness and

describe that witness’s opinions, the bases and reasons for those opinions, and

the witness's qualifications.” “[W]hen a defendant intends to introduce an

expert (1) who will testify to a mental disease or defect or any other mental

condition of the defendant and (2) that testimony bears upon the issue of the

defendant’s guilt or punishment,” RCr 7.24(3)(a) “is triggered and the expert

must be disclosed.” Terry, 332 S.W.3d at 59. Advance disclosure allows the

Commonwealth “adequate pretrial preparation, to prevent surprise at trial, and

to avoid the necessity of delays during trial.” Id. at 59-60 (quoting United States

v. Davis, 93 F.3d 1286, 1294 (6th Cir. 1996)). The rule only applies when a

defendant seeks “to prove a lack of guilt due to mental illness at the time of the

crime.” Id. at 60 (quoting Powell v. Graham, 185 S.W.3d 624, 630 (Ky. 2006)).

In Jones v. Commonwealth, 237 S.W.3d 153 (Ky. 2007), this Court held it

was an abuse of discretion for the trial court to limit the appellant’s expert

witness testimony when “Jones had not informed the Commonwealth during

discovery that he intended for Dr. Melekovets to criticize the Commonwealth's

expert’s methodologies.” Id. at 155. This Court reasoned that “it surely could

15
not have come as a surprise to the Commonwealth that Dr. Melekovets would

disagree with the conclusion and/or analytical process used by the

Commonwealth’s DNA expert in light of the conclusions contained in Dr.

Melekovets’s report.” Id. at 158-59.

The Jones opinion distinguishes from Barnett v. Commonwealth, 763

S.W.2d 119 (Ky. 1988), in which this Court held “that it was error for the trial

court to permit the serologist to testify at trial about the hand washing because

the serologist’s report did not contain any opinions regarding hand washing.”

Id. at 157-58.

Here, there is no dispute that Miller filed a disclosure of Dr. Ebben’s

report under RCr 7.24. The disclosure stated “Dr. Ebben will testify that Ms.

Miller is likely diagnosed with schizoaffective disorder. He will further testify

that there is a possibility that Ms. Miller was experiencing severe mental

illness, potentially impacting her ability to be held criminally responsible at the

time of the incident; however, there are many uncertainties and unknowns.”

The issue is that, at trial, Dr. Ebben testified that his diagnosis was

unspecified schizophrenia instead of schizoaffective disorder.

During Dr. Ebben’s in camera testimony, he stated schizoaffective

disorder and unspecified schizophrenia are different diagnoses in the DSM-5. 4

He also testified that unspecified schizophrenia is an umbrella diagnosis when

it is unclear whether the patient suffers from schizoaffective disorder or bipolar

4 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition.

16
disorder with psychosis. Dr. Ebben’s report states that Miller most likely

suffered from schizoaffective disorder instead of bipolar disorder with

psychosis. However, given that the specified schizophrenia is a different

diagnosis, the Commonwealth, which is not a mental health expert, was

unaware of this change in diagnosis prior to the trial. It was reasonable for the

trial court to determine the Commonwealth was unable to adequately prepare

to cross-examine Dr. Ebben. Thus, the trial court’s ruling was rooted in

fairness and supported by sound legal principles, so we cannot say the trial

court abused its discretion in excluding Dr. Ebben’s testimony. 5

Miller also argues that because Dr. Allen testified Miller never talked to

him about experiencing hallucinations, Dr. Ebben should have been permitted

to testify that Miller told him she hallucinated to support her insanity defense.

This is impermissible. Evidence supporting an insanity defense “must come

from some admissible source.” Padgett v. Commonwealth, 312 S.W.3d 336, 341

(Ky. 2010). In Padgett, the defendant sought “to prove the presence of her

extreme emotional disturbance with expert testimony based primarily on her

out-of-court statements.” Id. “Where the defendant does not testify and there is

no other factual basis to support a defense of extreme emotional disturbance,

that defense cannot be bootstrapped into the evidence by an expert opinion

5 We note that Miller’s counsel was unaware that there would be a discrepancy

between Dr. Ebben’s report and his testimony until the issue arose during Dr. Ebben’s
testimony.

17
premised primarily on out-of-court information furnished by the defendant.”

Id. at 341-42 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998)).

Miller did not testify on her behalf at trial. Though Dr. Ebben reviewed

prior medical records in assessing Miller’s criminal responsibility, the only

evidence negating Miller’s culpability when the incident occurred was her out-

of-court statements that she hallucinated during the incident to Dr. Ebben.

There were no medical records regarding Miller’s mental state near the time of

the incident. There was no other evidence that Miller hallucinated or suffered

from delusions severe enough to support her insanity defense. Miller did not

mention anything indicating she experienced hallucinations or delusions to the

police or Dr. Allen. Because Miller did not testify and there was no other

evidence regarding her criminal responsibility, she attempted to bootstrap her

insanity defense into evidence through Dr. Ebben’s testimony with uncross-

examined, out-of-court information furnished by Miller. Thus, the trial court

did not abuse its discretion in prohibiting Dr. Ebben from testifying further at

trial following the disclosure of the discrepancy.

IV. The trial court did not abuse its discretion in declining to instruct the
jury on reckless homicide.

Fourth, Miller argues the trial court abused its discretion in failing to

instruct the jury on reckless homicide. “[I]n deciding whether to give a

requested instruction the trial court must decide ‘whether the evidence would

permit a reasonable juror to make the finding the instruction authorizes.’ . . .

[T]he trial judge’s superior view of evidence warrants a measure of deference

from appellate courts that is reflected in the abuse of discretion standard.”
18
Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015) (quoting Springfield v.

Commonwealth, 410 S.W.3d 589, 599 (Ky. 2013), overruled on other grounds,

Univ. Med. Ctr., Inc. v. Shaub, 628 S.W.3d 112 (Ky. 2021)).

Although “a trial court must instruct the jury on the whole law of the

case,” a trial court is not required to “place before the jury speculative theories

. . . merely because the testimony includes some basis for the speculation.”

Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015) (quotation marks

and footnote omitted). Instructing on a lesser-included offense is only required

when “the evidence would permit the jury to rationally find the defendant not

guilty of the primary offense, but guilty of the lesser offense.” Id. (internal

quotation marks and footnote omitted). Stated differently, “[i]nstructing on a

lesser-included offense is proper only if the jury could consider a doubt as to

the greater offense and also find guilt beyond a reasonable doubt on the lesser

offense.” Id. (internal quotation marks and footnote omitted).

Under a “‘straight’ reckless homicide theory, . . . the defendant acts

without the specific intent to kill and in doing so, fails to perceive a substantial

and unjustifiable risk that his actions could cause the victim’s death.”

Commonwealth v. Hasch, 421 S.W.3d 349, 355 (Ky. 2013) (citing KRS

507.050(1) and KRS 501.020(4)). “[F]ailure to perceive that risk must be ‘a

gross deviation from the standard of care that a reasonable person would

observe in the situation,’” and “the victim’s death supplies the element of

recklessness necessary to sustain a reckless homicide conviction.” Id. at 356

(quoting KRS 501.020 (4)).

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In Hasch, the appellee “killed her husband by shooting him with a gun.”

Id. at 357. She “was skilled in the use of firearms” and understood the

ramifications of pulling the trigger at a short distance from her husband’s

head. Id. This Court held:

No rational juror could believe that Appellee failed to
perceive the risk of death inherent in her conduct of
firing a pistol, with or without her eyes closed, in the
direction of another person at such close range. The
essential element of straight reckless homicide—her
failure to perceive the risk that her actions could
result in another’s death—is undoubtedly absent
here[.]

Id.

Miller argues that her statement to a detective that she did not intend to

kill Harris was sufficient to instruct the jury on reckless homicide. However,

this argument is speculative. Based on the evidence, no rational juror could

believe that Miller failed to perceive the risk in her conduct of suddenly

accelerating her car as Harris walked in front of her car.

The trial court instructed the jury on murder and the lesser included

offenses of first-degree manslaughter and second-degree manslaughter, which

both require a mental element greater than reckless. The evidence did not

support an instruction on reckless homicide. The jury found Miller guilty of

murder, so it rejected a lesser mental state. Thus, the trial court did not abuse

its discretion in failing to instruct the jury on the charge of reckless homicide.

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CONCLUSION

For the foregoing reasons, we affirm the judgment of the Kenton Circuit

Court.

All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, Nickell, JJ.,

concur. Thompson, J., concurs in result only by separate opinion.

THOMPSON, J., CONCURRING IN RESULT ONLY: I agree with the

majority opinion that it is appropriate to affirm, because the evidence of guilt

was overwhelming, but I vehemently disagree with the majority’s analysis that

it was appropriate for the trial court to allow the admission of medical records

and school records without previous disclosure. Whether or not Marsha Lynn

Miller’s objection to this error was sufficient to preserve it, this was a terrible

and intolerable error! I write separately to emphasize the seriousness of such

an error; to emphasize how highly inappropriate it was for the Commonwealth

to introduce such records in such a manner; and to inform trial courts that

they must be on their guard against allowing records to be admitted into

evidence without a proper foundation.

The basis for the admission of records through cross-examination of

Miller’s expert, Dr. Allen, was not satisfied. Kentucky Rules of Evidence (KRE)

703(a) specifies that the facts or data upon which an expert bases an opinion,

“[i]f of a type reasonably relied upon by experts in the particular field in

forming opinions . . . need not be admissible in evidence.” KRE 703(b) provides

a very narrow basis upon which to admit such facts or data: “If determined to

be trustworthy, necessary to illuminate testimony, and unprivileged, facts or

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data relied upon by an expert pursuant to subdivision (a) may at the discretion

of the court be disclosed to the jury even though such facts or data are not

admissible in evidence.” Additionally, if such facts and data are admitted, KRE

703(b) specifies further: “Upon request the court shall admonish the jury to use

such facts or data only for the purpose of evaluating the validity and probative

value of the expert's opinion or inference.”

As we know from the majority opinion, medical records, school records,

and hospital records only reviewed by Dr. Ebben, the defense expert who was

ultimately not allowed to testify, and not reviewed by Dr. Allen were admitted.

Therefore, no appropriate foundation for their admission was provided.

While medical records may be admissible under the business records

exception to hearsay if also authenticated, and pursuant to KRE 803(4)

statements made for the purposes of medical treatment or diagnosis are

admissible, that does not mean that every statement within those medical

records is admissible. Many other hearsay statements also contained therein

will not be. Parties need an opportunity to comb through medical records to try

to parse admissible evidence from inadmissible evidence and make all needed

objections before such records should ever be admitted into evidence in a

criminal case.

Additionally, even if an expert has relied upon medical records, it does

not mean that everything within those records is admissible, for certainly there

may be facts and data within those records which are appropriately used by

experts in the field, and other facts and data which would not be used by

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experts within the field. Among the subset of facts and data actually relied

upon, not all of such records will qualify as being “trustworthy, necessary to

illuminate testimony, and unprivileged[.]” The trial court as gatekeeper must be

cognizant of the limits of admitting evidence under this rule.

As noted in Exantus v. Commonwealth, 612 S.W.3d 871, 900–01 (Ky.

2020), strict adherence to the requirements of KRE 703(b), “that the evidence

be determined by the trial court to be ‘trustworthy, necessary to illuminate

testimony, and unprivileged’” is required as “it is . . . the only safeguard in KRE

703 against the erroneous admission of evidence[.]” A trial court should

address the factual determinations required by KRE 703(b) before admitting

such records into evidence. Hoff v. Commonwealth, 394 S.W.3d 368, 374 (Ky.

2011); Exantus, 612 S.W.3d at 901; Rabovsky v. Commonwealth, 973 S.W.2d 6,

11 (Ky. 1998). Depending on the prejudice resulting from the wrongful

admission of inadmissible statements, this can constitute a palpable, reversible

error. Hoff, 394 S.W.3d at 375.

Finally, it is mandatory that an appropriate admonition be given upon

request, and it should not matter at what time the request takes place as long

as it occurs before the jury retires. The trial court had a duty to so instruct the

jury when Miller requested an admonition, even if it was made with a tardy

objection.

Given the overwhelming evidence against Miller, she was not ultimately

prejudiced by the trial court’s failure to exclude this evidence, which was

further compounded by the trial court’s failure to give an appropriate

23
instruction. However, ultimately, the result would not have been any different

had this evidence been excluded and/or the jury been admonished. Therefore, I

agree that this error was not palpable.

Accordingly, I concur in result only.

COUNSEL FOR APPELLANT:

Jennifer Elizabeth Hubbard
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman
Attorney General of Kentucky

Jenny L. Sanders
Assistant Attorney General

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