“Look-but-Don’t-Intimidate”: Simpson v. Commonwealth and the Permissible Use of Courtroom Barriers Consistent with the Confrontation Clause

1. Introduction

Jamie Simpson appealed his 60-year sentence after a Kenton County jury convicted him of first-degree burglary, kidnapping, second-degree assault, first-degree strangulation, tampering with a witness, and Persistent Felony Offender (PFO I) status. The Supreme Court of Kentucky, in an unpublished opinion dated 14 August 2025, affirmed every conviction and the sentence.

Although unpublished and therefore non-precedential under Kentucky Rule of Appellate Procedure 40(D), the opinion is noteworthy for three doctrinal touchpoints:

• The circumstances under which a trial judge may interpose a physical barrier between the accused and a testifying witness without violating the federal and state confrontation guarantees;
• The contours of a defendant’s entitlement to lesser-included-offense instructions in violent-crime prosecutions; and
• The perennial question of shackling—recognised error, yet frequently found harmless at the penalty phase.

2. Summary of the Judgment

The Court (Lambert, C.J., writing; Thompson, J., concurring in result only) rejected five clusters of alleged error:

1. Failure to instruct on lesser-included offences (criminal trespass, first-/second-degree unlawful imprisonment, fourth-degree assault, and extreme emotional disturbance variants);
2. Placement of a television monitor between Simpson and victim A.B. during her testimony to block defendant’s perceived attempts at non-verbal intimidation;
3. Admission of a photograph showing A.B. demonstrating strangulation on a medical manikin;
4. Requiring Simpson to appear in handcuffs during the penalty phase; and
5. Cumulative-error analysis.

Except for the shackling claim (found erroneous but harmless), the Court concluded the trial judge acted within her discretion throughout.

3. Analysis

3.1 Precedents Cited and Their Influence

• Walker v. Commonwealth, 548 S.W.3d 250 (Ky. 2018) – Approved the use of a rolling television to block a sexual-assault victim’s view of the accused. Simpson extends Walker beyond young sexual-assault complainants: here the barrier was justified by defendant’s in-court attempts to communicate with the (adult) witness, not solely by witness emotional distress.
• Howard v. Commonwealth, 595 S.W.3d 462 (Ky. 2020) & Sparkman v. Commonwealth, 250 S.W.3d 667 (Ky. 2008) – Restated that cross-examination, not necessarily face-to-face eye contact, is the “core” of confrontation. The Court relied on these cases to hold that Simpson’s confrontation rights remained intact because he could hear, see (via monitor), and cross-examine A.B.
• Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016); Swift, 237 S.W.3d 193 (Ky. 2007) – Set the threshold for lesser-included instructions (“might have a reasonable doubt… and yet believe…the lesser”). The Court quoted these in rejecting Simpson’s requested instructions.
• Barbour v. Commonwealth, 204 S.W.3d 606 (Ky. 2006) & Deal v. Commonwealth, 607 S.W.3d 652 (Ky. 2020) – Shackling principles. Simpson reiterates that a specific on-record finding is required, yet recognises harmlessness when guilt is already determined and violent history is before the jury.
• Daniel v. Commonwealth, 607 S.W.3d 626 (Ky. 2020) & Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997) – Use of demonstrative aids. These guided the Court in approving the mannequin-photo admission.

3.2 The Court’s Legal Reasoning

1. Lesser-Included Offences – The defendant’s own testimony (admitting assaultive conduct) removed any rational basis for a jury to find criminal trespass rather than burglary, unlawful imprisonment rather than kidnapping, or reckless (fourth-degree) rather than intentional (second-degree) assault. Hence no abuse of discretion in refusing instructions.
2. Extreme Emotional Disturbance (EED) – By statute, EED mitigates only KRS 508 assault offences; it is no defence to burglary or kidnapping. Failure to offer an EED instruction was therefore not palpable error.
3. Physical Barrier and Confrontation Clause – The trial court balanced defendant’s rights against the need to protect the witness and orderly proceedings. Because (i) the jury could still observe the witness, (ii) Simpson could watch via monitor, and (iii) cross-examination was unhindered, the accommodation passed constitutional muster.
4. Demonstrative Evidence – The photo aided jurors’ understanding of the mechanics of strangulation, was contemporaneous with medical treatment, and its probative value was not “substantially outweighed” by prejudice under KRE 403.
5. Shackling Error – Error occurred under RCr 8.28(5) for lack of specific findings. Yet, given the prior guilty verdicts and admitted 20-year record, no “manifest injustice” resulted; thus reversal was unwarranted.

3.3 Potential Impact

While unpublished, Simpson supplies persuasive authority on two procedural fronts:

• Trial courts may erect an ad hoc barrier—even mid-testimony—where the accused is observed attempting to intimidate or communicate with a witness. The opinion clarifies that a witness need not be a minor or in emotional collapse; obstruction of intimidation alone suffices.
• Counsels are forewarned: admissions by the accused can foreclose lesser-included instructions. Tactical decisions to concede “some wrongdoing” risk narrowing the instructional landscape.

Additionally, the decision reinforces the Kentucky appellate trend of labelling shackling during the penalty phase as error but frequently harmless—suggesting defense counsel must create a robust record of prejudice to prevail on appeal.

4. Complex Concepts Simplified

• Lesser-Included Offence – A crime that is “contained” within a charged crime. For example, trespass is included within burglary because burglary requires unlawful entry plus intent to commit another crime.
• Extreme Emotional Disturbance (EED) – A mental state less than insanity but strong enough to explain why a defendant lost self-control. In Kentucky, EED can reduce murder to manslaughter and mitigate certain assaults.
• Palpable Error Review – When an issue was not properly preserved at trial, an appellate court will reverse only if the mistake is so obvious and serious that it threatens the fairness of the proceedings (“manifest injustice”).
• Confrontation Clause vs. “Face-to-Face” Right – The constitutional right focuses on cross-examination; visual contact can be adjusted when countervailing needs (e.g., witness protection) exist, provided the jury can still assess demeanor and the accused can cross-examine.
• Dangerous Instrument – Any object that, in the manner used, is capable of causing serious physical injury (e.g., household candle wielded as a bludgeon).

5. Conclusion

Simpson v. Commonwealth may not be citable as binding precedent, yet it furnishes a practical blueprint for Kentucky trial judges confronting disruptive or intimidating defendants: a simple television monitor—or any non-opaque barrier—can be deployed without infringing confrontation rights, so long as the defendant retains full auditory access and the ability to cross-examine.

The opinion also underscores the evidentiary maxim that a defendant’s own testimony can foreclose lesser-included avenues and reaffirms the advisory—rather than fatal—nature of a shackling misstep post-verdict. Practitioners should therefore:

• Advise clients strategically before they testify to admissions that could nullify lesser-included defences;
• Object contemporaneously and request on-record findings when restraints are proposed; and
• Recognise that creative courtroom logistics (screens, monitors, layout changes) are increasingly accepted tools to preserve decorum and witness security.

Ultimately, Simpson stands as a reminder that courtroom management—like many trial decisions—is entrusted to the broad discretion of the judge, bounded by constitutional safeguards yet responsive to real-time exigencies.