Trustworthiness, Curtilage, and Alternative‑Perpetrator Defenses:
Commentary on Gregory M. Heightchew v. Commonwealth of Kentucky

I. Introduction

This unpublished decision of the Supreme Court of Kentucky in Gregory M. Heightchew v. Commonwealth (Dec. 18, 2025, No. 2024-SC-0304-MR) affirms a life sentence (LWOP 25) arising from the kidnapping, shooting, and burning of Elijah Creekmore. Although designated “Not to be Published” under RAP 40(D) and therefore not binding precedent, it is a detailed application of several important doctrines in Kentucky criminal practice:

• When out-of-court confessions by alleged accomplices are admissible as “statements against penal interest” under KRE 804(b)(3);
• How far the constitutional “right to present a complete defense” extends when a defendant seeks to offer highly suspect alternative perpetrator (“aaltperp”) evidence;
• When a criminal facilitation instruction must be given as a lesser‑included offense of complicity;
• How curtilage and “open fields” doctrine apply to evidence (here, shell casings) found near a driveway and mailbox; and
• How unanimity doctrine interacts with multi-object tampering instructions under KRS 524.100.

The Court also includes a concurrence focused on preservation of jury instruction issues, underscoring ongoing tensions in Kentucky appellate practice over when an error is preserved, forfeited, or waived.

This commentary treats the opinion as a rich illustration and clarification of existing law—particularly on KRE 804(b)(3) corroboration and curtilage analysis—even though it is formally non‑precedential.

II. Summary of the Opinion

A. Factual Background

The case arises from a brutal sequence of events on October 1–2, 2018:

• Appellant Gregory Heightchew suspected Demarcus Pinion and Elijah Creekmore of burglarizing his home and stealing money and marijuana.
• Pinion and Creekmore drove to Heightchew’s house to “sort out the misunderstanding.” Before they arrived, a handgun was placed in Heightchew’s mailbox and his girlfriend, Brooklynn Clark, was told to leave because he needed to “handle his business.”
• During a heated confrontation outside the house, witnesses saw Heightchew retrieve the handgun from the mailbox, put it within inches of Pinion’s face, pull the trigger (the safety was on), and then fire at both Pinion and Creekmore as they fled.
• Pinion escaped. Creekmore did not—blood drops were later found on Heightchew’s property. According to the Commonwealth’s proof, Heightchew and Joshua Jackson seized Creekmore, put him in his own gray sedan, and drove him about 25 miles to a swimming hole in Lockport.
• Medical evidence showed Creekmore suffered a broken skull, a gunshot wound to the abdomen perforating his small intestine, and then was burned alive in his car. Cause of death included the gunshot, head trauma, thermal injuries, and smoke inhalation.
• A .45-caliber casing at the swimming hole matched four casings found near the driveway at Heightchew’s house; all came from the same .45-caliber semi‑automatic handgun later recovered from the swimming hole and traced to a seller who identified it as sold to Heightchew.
• Cell-site data showed both Jackson and Heightchew in the area of the murder; Jackson’s shoes matched footprints near the burned car and were later found burned on his property. Clark and her friend Kemper picked the two men up 1.5 miles from the crime scene after being instructed not to come in the BMW but in another vehicle.

Police twice visited the home that evening after Pinion reported the shooting and Creekmore’s disappearance. No one answered the doors. On the second visit, officers walked the perimeter (including the backyard), used a thermal imaging device, then returned toward the front and, in a final flashlight sweep near the driveway edge, discovered four spent .45-caliber casings.

The next morning, a construction worker discovered the burned car and Creekmore’s remains at the swimming hole.

B. Procedural History

Key procedural steps:

• Indictment: murder, first-degree arson, attempted murder, and tampering with physical evidence. Amended to a complicity theory.
• Accomplice Jackson pled guilty (30-year sentence) in a deal requiring him to testify against Heightchew.
• Shortly before trial, Jackson sent the court a notarized affidavit claiming he alone committed the crimes and exculpating all others. Jail calls revealed his strategic motive was to derail the trial; he explicitly stated he was lying.
• Jackson refused to testify when brought before the court; he was held in contempt and deemed “unavailable.” The Commonwealth moved to exclude his affidavit as untrustworthy hearsay. The trial court agreed.
• The court denied a defense motion to suppress the driveway shell casings, finding (1) no proven residential interest for standing, and (2) the casings were outside the curtilage.
• The court rejected defense‑proposed facilitation instructions for murder and arson and used a broader tampering instruction covering four possible items (car, body, cellphone, handgun).
• The jury convicted on all counts and recommended life with parole eligibility after 25 years. Judgment was entered accordingly.
• Appeal as a matter of right under Ky. Const. § 110(2)(b).

C. Issues on Appeal and Holdings

1. Exclusion of Jackson’s affidavit under KRE 804(b)(3): The Court held the affidavit was inadmissible because corroborating circumstances did not “clearly indicate” its trustworthiness, especially in light of Jackson’s recorded admissions that it was “bullshit” and a lie. No abuse of discretion.
2. Right to present a complete defense: Excluding the affidavit did not violate federal or state constitutional rights to present a defense. KRE 804(b)(3) is a legitimate evidentiary rule, not arbitrarily applied here, and the affidavit was largely cumulative of other aaltperp evidence the defense was allowed to present.
3. Refusal to instruct on criminal facilitation of murder and arson: There was no evidentiary basis on which a reasonable juror could find that Heightchew was merely a facilitator “wholly indifferent” to the completion of the crimes. No error.
4. Motion to suppress shell casing evidence: Even assuming standing, the area where the casings were discovered (near driveway and mailbox) was an “open field,” not protected curtilage under the Dunn/Quintana factors; and any possibly unlawful backyard search was not a “but‑for” cause of discovering the casings. Suppression was correctly denied.
5. Unanimity challenge to tampering instruction: Although the argument was unpreserved (and not waived), there was no palpable error. Under Brown v. Commonwealth, the jury need not be unanimous as to which of several pieces of “physical evidence” was tampered with, so long as they unanimously found that he tampered with some physical evidence. No unanimity violation.
6. Cumulative error: Having found no individual error, the Court rejected cumulative error.

Justice Conley, joined by Justice Nickell, concurred, disagreeing only on preservation analysis for the tampering instruction. In his view, under Jerome v. Commonwealth, tendering an alternative instruction is enough to preserve the objection when the court adopts a materially different version.

III. Analysis of Key Doctrinal Points

A. Statements Against Penal Interest under KRE 804(b)(3) and Alternative Perpetrator Evidence

1. Doctrinal Background: Hearsay and KRE 804(b)(3)

Hearsay basics:

• Hearsay is an out-of-court statement offered “to prove the truth of the matter asserted” (KRE 801).
• It is generally inadmissible unless it fits an exception (KRE 802), because the declarant cannot be cross‑examined.

KRE 804(b)(3) carves out a narrow exception:

[A] statement which was at the time of its making so far tended to subject the declarant to civil or criminal liability … that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Key points in Kentucky’s interpretation, drawn from Crawley v. Commonwealth, 568 S.W.2d 928 (Ky. 1978) and Fugett v. Commonwealth, 250 S.W.3d 604 (Ky. 2008):

• The proponent of the statement (here, the defendant) bears the burden to prove the exception applies.
• The trial judge acts as “evidentiary gatekeeper” to decide whether the corroborating circumstances “clearly indicate” trustworthiness; this is reviewed for abuse of discretion.
• Crawley identifies four non‑exclusive “trustworthiness” considerations:
  1. Timing of the declaration and to whom it was made;
  2. Existence of corroborating evidence;
  3. Extent to which the statement is truly against the declarant’s penal interest; and
  4. Availability of the declarant as a witness.

The U.S. Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973), is also central: it held that reliable, critical third‑party confessions cannot be excluded by overly rigid hearsay rules when doing so would violate due process. Kentucky’s KRE 804(b)(3) is crafted partly in response to that concern.

2. Gatekeeping vs. the Jury’s Role

The defense argued that the trial court improperly “invaded the province of the jury” by assessing the credibility of Jackson’s affidavit, citing Martin v. Commonwealth, 686 S.W.3d 77 (Ky. 2023), and Williamson v. United States, 512 U.S. 594 (1994).

The Supreme Court flatly rejected that premise, clarifying:

• Juries are indeed the trier of credibility once evidence has cleared basic admissibility thresholds.
• But under KRE 804(b)(3), trial courts must decide whether corroboration “clearly indicates” trustworthiness; that necessarily includes evaluating the reliability (and in some respects, credibility) of the statement in context.
• Ensuring that obviously perjured or tactical “confessions” do not reach the jury is precisely the gatekeeping function.

This opinion therefore underscores that trustworthiness screening is not an impermissible credibility determination; it is required by the Rule.

3. Application of the Crawley Factors

a. Timing and Recipient

Facts on this factor:

• Jackson executed the affidavit more than six years after the crime.
• He submitted it directly to the trial court, asking that it be placed in the case file for the jury.

The Court viewed the long delay as undermining reliability, consistent with Crawley (several months’ delay was already suspect there). Submission to a court could, in the abstract, lend some formality. Overall, the Court treated this factor as essentially neutral.

b. Corroborating Evidence (Supportive and Contradictory)

This is the most important aspect of the Court’s analysis and the point at which it most clearly refines the law.

The defense pointed to evidence consistent with Jackson being a perpetrator:

• His footprints by the burned car;
• His phone pinging in the area;
• His being picked up near the scene;
• His prior guilty plea to complicity.

But the key question was narrower: does evidence corroborate Jackson’s specific claim that he alone committed the shooting and burning, and that Heightchew was uninvolved?

On this, the Court found the overwhelming balance of circumstances contradicted the affidavit:

• Multiple recorded jail calls where Jackson described having written “a little bullshit story” to get the trial delayed and openly admitted the affidavit was a lie:

  “Ah who gives a fuck about a lie, I lie all the time. I lie every day, who cares.”

• The affidavit was the first and only time Jackson ever claimed to be the sole actor; nothing else in the record showed he told this same story to anyone else (a concern identified in Crawley).
• Independent evidence tying Heightchew to the murder:
  • Witnesses saw him shoot at Creekmore earlier that day with the same model .45-caliber handgun;
  • That handgun (Remington 1911) was later recovered from the swimming hole;
  • Both his and Jackson’s phones pinged near the crime scene;
  • Clark and Kemper picked both men up together near the scene;
  • He had a clear motive related to the alleged theft from his home.

Critically, the Court expressly “takes the opportunity to clarify” that the corroboration inquiry:

is not confined to only evidence that supports the statement, but rather it must also take into account evidence that contradicts the truth of the statement as well.

This is an important doctrinal clarification: corroborating circumstances under KRE 804(b)(3) require a holistic, total‑evidence assessment, not a cherry‑picked set of favorable facts.

Because Jackson admitted the affidavit was a fabrication and because physical and circumstantial evidence pointed strongly to Heightchew’s active role, the Court found this factor weighed heavily against admissibility.

c. Extent to Which the Statement Is “Really” Against Penal Interest

The Court’s discussion here is nuanced and adds conceptual clarity to KRE 804(b)(3).

On the surface, Jackson’s affidavit was clearly against his interest:

• He asserted that he alone committed a capital-level murder and arson, which could jeopardize his plea agreement and increase his exposure.
• The plea was, in fact, later set aside.

But the Court focused on Jackson’s subjective understanding of his risk, citing United States v. Alvarez, 266 F.3d 587 (6th Cir. 2001), and Lawson, Kentucky Evidence Law Handbook:

• Jail calls showed Jackson believed—based on alleged legal advice—that he would not be made “worse off” by lying, that the plea might survive, and that he was “screwed regardless.”
• He explicitly prioritized his prison reputation and comfort over any marginal sentencing risk: he would “rather lie than not be comfortable.”

The Court thus reads the requirement that a statement “really” be against penal interest as having both:

• An objective component (would a reasonable person see this as exposing him to real criminal liability?); and
• A subjective component (did the declarant himself believe he faced real penal jeopardy by speaking?).

If the declarant did not actually think the statement increased his risk, the underlying rationale of the exception (“people don’t make up self‑inculpatory statements”) weakens significantly.

On these facts, the Court deemed this factor essentially neutral: the statement was objectively against interest, but Jackson’s subjective motives (delay trial; improve prison standing) undercut the usual presumption of reliability.

d. Availability

Jackson was plainly “unavailable” under KRE 804(a) because he refused to testify and was held in contempt. This factor did not drive the outcome.

e. Bottom Line on 804(b)(3)

Weighing the factors, and particularly Jackson’s recorded admission that the affidavit was a lie, the Court held the trial judge acted well within his discretion in excluding the statement as untrustworthy.

From a practice standpoint, the case signals that Kentucky courts will be extremely skeptical of late “sole perpetrator” affidavits from accomplices that:

• Are timed strategically on the eve of trial,
• Stand in tension with physical evidence, and
• Are undercut by the declarant’s own recorded acknowledgment of lying.

4. Constitutional Right to Present a Complete Defense

The defense argued that, even if Jackson’s affidavit did not meet KRE 804(b)(3), excluding it violated the constitutional right to present a complete defense—particularly an alternative‑perpetrator theory.

The Court applies the framework from Holmes v. South Carolina, 547 U.S. 319 (2006), United States v. Scheffer, 523 U.S. 303 (1998), and Kentucky’s McPherson v. Commonwealth, 360 S.W.3d 207 (Ky. 2012):

[T]he defendant’s interest in the challenged evidence must be weighed against the interest the evidentiary rule is meant to serve, and only if application of the rule would be arbitrary in the particular case or disproportionate to the state’s legitimate interest must the rule bow to the defendant’s right.

Key points in the Court’s reasoning:

• KRE 804(b)(3) is a well‑established rule that serves the legitimate interest of excluding unreliable hearsay, especially suspect post‑crime confessions by others.
• The trial court’s application here was not arbitrary: it considered both supporting and contradictory evidence, using the Crawley factors, and was heavily influenced by Jackson’s recorded admission that the affidavit was false.
• Excluding the affidavit did not deprive the defense of the “crux” of its alternative‑perpetrator theory, because the defense still presented:
  • Evidence of Jackson’s presence at the scene;
  • Cell‑site data;
  • Footprint evidence;
  • Burned shoes/clothing.
  The affidavit would merely have been cumulative of this theory, albeit more dramatic.
• The situation was unlike Crane v. Kentucky, 476 U.S. 683 (1986), where the excluded evidence was the only way to challenge a confession and there was no physical evidence tying the defendant to the crime.

The Court also invokes KRE 403’s logic: once a particular theory (here, “Jackson did it”) is already well supported by admitted evidence, the incremental probative value of additional evidence on the same point diminishes—even if that additional evidence would be highly persuasive in isolation. When that extra piece is simultaneously highly unreliable, exclusion is constitutionally permissible.

Result: no constitutional violation.

B. Lesser‑Included Facilitation Instructions

1. Facilitation vs. Complicity

Kentucky recognizes criminal facilitation as a lesser‑included offense of complicity. The opinion relies on:

• Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977);
• Chumbler v. Commonwealth, 905 S.W.2d 488 (Ky. 1995);
• Thompkins v. Commonwealth, 54 S.W.3d 147 (Ky. 2001);
• Dixon v. Commonwealth, 263 S.W.3d 583 (Ky. 2008);
• Baker v. Commonwealth, 545 S.W.3d 267 (Ky. 2018).

Doctrinally:

• Complicity (KRS 502.020) requires that the defendant intend that the principal offense be committed—he aids, counsels, or participates with that purpose.
• Facilitation (KRS 506.080), by contrast, targets a person who knowingly supplies the means or opportunity for the crime but is “wholly indifferent” to whether it occurs. Facilitation is like “helping without caring if it happens.”

Kentucky law is clear that a facilitation instruction does not automatically accompany every complicity instruction. It is proper only where the evidence would allow a reasonable juror to harbor a reasonable doubt about the more culpable mental state, yet still convict on the lesser.

2. Evidence Standard for Giving a Facilitation Instruction

Under the “reasonable juror” standard (Baker), the court reviews the evidence in the light most favorable to the defendant to determine whether:

• A reasonable juror could doubt he intended the crime (complicity) but
• Still conclude beyond a reasonable doubt that he knowingly facilitated while indifferent to its completion.

Here, the Court found overwhelming evidence that Heightchew intended Creekmore’s death or serious harm:

• He pre‑positioned a handgun in his mailbox before Pinion and Creekmore arrived;
• He told Clark to leave because he had to “handle his business”;
• He pointed the gun inches from Pinion’s face and fired (safety engaged; then fired as they fled);
• He had Creekmore seized and transported 25 miles away;
• He was present at the swimming hole while Creekmore was shot, bludgeoned, and burned;
• He arranged a pickup and told Clark to lie and provide an alibi.

The defense’s facilitation theory was essentially a repackaged alternative‑perpetrator argument: Jackson alone was the killer, and Heightchew was at most a passive bystander or minimal helper.

The Court rejected this for two reasons:

1. The evidence at most showed that Jackson also participated; it did not suggest that only Jackson had murderous intent or that Heightchew was indifferent.
2. There was no evidence of independent motive for Jackson; his interest appeared wholly derivative of Heightchew’s dispute with Creekmore. By contrast, the earlier shooting at the house strongly indicated Heightchew wanted Creekmore dead.

Consequently, no reasonable juror could simultaneously:

• Disbelieve that Heightchew intended the crimes, and
• Believe beyond a reasonable doubt that he merely facilitated while being “wholly indifferent.”

A facilitation instruction would have been, in the Court’s words, an “unreasonable misrepresentation of the applicable law.”

C. Suppression, Standing, Curtilage, and the Open‑Fields Doctrine

1. Standing and Proof at the Suppression Hearing

A defendant can invoke the exclusionary rule only if his own Fourth Amendment rights were violated. This is a question of “standing” in the Fourth Amendment sense (Salvucci, Warick).

Key legal points:

• Standing arises only if the defendant had a “legitimate expectation of privacy” in the place searched.
• It is the defendant’s burden to prove that expectation, often by showing the place is his home (Ordway).
• Critically, the trial court must decide the motion “on the basis of evidence presented at the suppression hearing” (Hayes). Later trial testimony cannot retroactively cure a deficient record at the hearing.

Application here:

• At the suppression hearing, defense counsel asserted in briefing that the house was “his residence,” but offered no testimony or documents to prove it.
• The trial court correctly noted this lack of proof and found he had not carried his burden to show a protectable interest.

On appeal, the defense cited later trial evidence (grandmother’s testimony, warrant affidavits listing the address) to establish residency. The Supreme Court acknowledged that, even if standing could be shown, the motion would still fail on the merits because the area where the casings were found was an open field.

The practical point is clear: defense counsel must build a complete record on standing at the suppression hearing itself. Failure to do so is often fatal.

2. Curtilage vs. Open Fields: The Dunn/Quintana Factors

Substantively, the search question turned on whether the casings were found within the home’s protected “curtilage” or in an “open field.”

Under United States v. Dunn, 480 U.S. 294 (1987), and

Quintana v. Commonwealth, 276 S.W.3d 753 (Ky. 2008), courts consider:

1. Proximity of the area to the home;
2. Whether the area is within an enclosure around the home;
3. How the area is used (intimate activities vs public access);
4. What steps have been taken to shield the area from public view.

How those factors applied:

• Proximity: The casings were in the front yard, near the edge of the driveway and close to a “basement” door on the front of the house; closer to the structure than to the road. This weighed in favor of curtilage.
• Enclosure: There was no fence or physical barrier demarcating the yard; this weighed against curtilage.
• Use: This was the key factor. The casings were in an area used as a driveway and approach to the house—an area Kentucky law treats as public access under Quintana (accessible to postal workers, delivery people, visitors, “Girl Scouts,” etc.). It is not where “intimate activities of the home” occur. This weighed heavily against curtilage.
• Steps to prevent observation: None. No measures were taken to block visibility. This also weighed against curtilage.

With three of four factors—especially the use factor—weighing strongly against curtilage, the Court classified the area as an open field. Even though physically close to the house, its use as a driveway and access path defeated any reasonable expectation of privacy.

Result: No Fourth Amendment protection, no illegality, no suppression.

3. Fruit of the Poisonous Tree and “But‑For” Causation

The defense alternatively argued that the officers’ trip into the backyard (an area much more likely to be curtilage) was unlawful, and that the casing discovery was derivative “fruit of the poisonous tree.”

The Court did not decide whether the backyard entry was unlawful.

Instead, it focused on causation:

“[E]vidence will not be excluded as ‘fruit’ unless the illegality is at least the ‘but for’ cause of the discovery of the evidence.” (Segura v. United States, 468 U.S. 796, 815 (1984)).

Here, the officers’ backyard sweep produced no evidence and did not lead them to the casings. Those were found only when they returned to the front, conducting a final flashlight sweep they clearly had a right to do on an open‑field area.

Thus, even if the backyard entry were unlawful:

• It was not a “but‑for” cause of discovering the casings; and
• The casings were not “fruit” in the constitutional sense and remained admissible.

D. Jury Unanimity, Multi‑Object Tampering Instructions, and Preservation

1. The Tampering Instruction and the Unanimity Challenge

The final tampering instruction allowed conviction if the jury found that:

he destroyed a car or body or concealed and/or destroyed a cell phone or a 1911 Remington semi‑automatic handgun which he believed was about to be produced or used against him in an official proceeding.

The defense’s proposed instruction, by contrast, listed only the handgun. On appeal, Heightchew argued that jurors could have split:

• Some believing he tampered with the car;
• Others with the body; and so on.

Because Kentucky and federal law require unanimity as to each element of the offense (Ky. Const. § 7; U.S. Const. amend. VI), he argued this violated the unanimity rule.

The Court relied on Brown v. Commonwealth, 553 S.W.3d 826 (Ky. 2018), which upheld a robbery instruction that listed “money or jewelry or a car” as possible items stolen:

• The robbery statute criminalized taking “movable property”—jurors did not need to agree on which particular property was taken, so long as they all agreed some movable property was taken.

Analogously, KRS 524.100(1)(a) requires:

Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability….

The identity of the specific “physical evidence” is not an element of the offense; it is simply one of several factual means by which the element can be satisfied.

Under this reasoning, the jury had to be unanimous that:

• There was physical evidence;
• He tampered with it in one of the listed ways;
• With the requisite beliefs and intent.

They did not have to agree which piece of evidence (car, body, cell phone, handgun) satisfied that element.

This is an important reaffirmation of the “elements vs. means” framework derived from Richardson v. United States, 526 U.S. 813 (1999):

• Elements require unanimity;
• Alternative means or “underlying brute facts” often do not.

Thus, no unanimity error existed.

2. Preservation, Forfeiture, and “Invited Error”

a. Majority (Lambert, C.J.)

The majority holds that the unanimity argument was unpreserved but not waived.

Key steps in that analysis:

• Under RCr 9.54(2), a party preserves an instruction issue by:
  1. Tendering a proper instruction, or
  2. Filing a motion, or
  3. Making a specific objection before instructions are given.
• But where the court gives an instruction on the same topic (tampering) and the defense merely tenders a different version without explaining the specific ground (unanimity), that alone may not be enough to “fairly and adequately” present the objection (Long, Owens).
• Here, counsel filed an alternative instruction but did not articulate the unanimity concern at the conference. The court therefore had no real opportunity to address that specific legal issue.
• Later statements by counsel that “I think that accomplishes all of our issues” did not constitute an “express agreement” with the specific instruction or an intentional relinquishment of the right to object. There was no genuine “invited error” as in Sanchez or Grave.

Conclusion: the error was forfeited (no proper contemporaneous objection) but not waived (no knowing relinquishment). As a result, the Court reviewed only for palpable error and found none, given the Brown‑based unanimity analysis above.

b. Concurrence (Conley, J., joined by Nickell, J.)

Justice Conley agrees with the result and analysis of unanimity but disagrees strongly on preservation.

He reads Jerome v. Commonwealth, 653 S.W.3d 81 (Ky. 2022), as establishing a clear rule:

[A] party can preserve his objection to jury instructions in one of three alternative ways: (1) by offering an instruction; (2) by motion; or (3) by making a specific objection before the court instructs the jury. The rule does not require any additional objection or filing so long as one of these three is satisfied.

In his view:

• Heightchew did tender an instruction materially different from the court’s (only handgun vs four items).
• That act alone should preserve the issue; we should not require repeated objections or “pugnacious” insistence, which can realistically strain relations with trial judges.
• To call this unpreserved is inconsistent with Jerome and burdens defense counsel unfairly.

He also uses the concurrence to admonish criminal defense lawyers to prepare their own full sets of instructions and to make clear objections on the record. Where they fail, the better remedy is an RCr 11.42 ineffective assistance claim, not erosion of preservation standards.

The disagreement illustrates a continuing fault line in Kentucky appellate practice regarding how strictly to enforce preservation rules versus how sympathetic to be toward trial‑level oversight.

IV. Impact and Practice Implications

A. KRE 804(b)(3) and Alternative Perpetrator Strategies

Even though unpublished, this decision is a detailed road map for how Kentucky courts will treat accomplice affidavits and other third‑party confessions offered by defendants:

• Courts will look for robust, independent corroboration of the precise assertions in the statement—especially claims that the declarant acted alone and the defendant was uninvolved.
• Corroboration analysis explicitly includes contradictory evidence as part of the “totality of circumstances,” not just evidence that fits the narrative.
• A declarant’s recorded admission that he is lying will virtually foreclose admissibility under KRE 804(b)(3).
• Courts will examine the declarant’s subjective understanding of penal risk—if he thinks he’s “screwed regardless” and is acting for non‑penal reasons (e.g., prison reputation), the foundational rationale for the exception weakens.

For defense counsel:

• Treat aaltperp affidavits as at best a supplement to strong independent evidence showing third‑party motive and capability.
• Anticipate a rigorous trustworthiness inquiry and be prepared to explain why the declarant’s incentives align with truth-telling, not fabrication.
• When the declarant has made inconsistent statements or admissions of lying, it will be extremely difficult to get the statement in under 804(b)(3).

B. Right to Present a Complete Defense

This case underscores that:

• The right to present a defense does not override “well‑established” evidence rules properly applied, in line with Holmes and McPherson.
• Defendants must show that an exclusion is arbitrary or disproportionate to the state’s interest in reliability and that it removes the core of the defense, not just one of several lines of proof.
• When a theory (e.g., “Jackson did it”) is already supported by other admitted evidence, losing one additional piece of that theory—even a purported confession—will often be viewed as cumulative and constitutionally tolerable.

C. Jury Instruction Practice: Facilitation, Unanimity & Preservation

Practitioners should take away several points:

• Facilitation instructions:
  • They are not automatic companions to complicity. There must be evidence that reasonably supports a “wholly indifferent” mental state.
  • Where evidence overwhelmingly establishes the defendant’s motive and active participation, facilitation is not appropriate, and courts may label such a request as mischaracterizing the law.
• Unanimity and multi‑object instructions:
  • When a statute is written in terms of a general element (e.g., “physical evidence,” “movable property”), a single instruction may permissibly list several factual alternatives for satisfying that element.
  • Defense challenges should focus on whether the listed alternatives are truly “means” or whether they effectively define distinct crimes requiring separate unanimity (King; Johnson).
• Preservation:
  • The safest course is to both tender written instructions and state specific objections and grounds on the record when the court rules.
  • This case highlights a genuine split in emphasis among justices: the majority demands that tendered instructions meaningfully alert the court to the legal ground (here, unanimity), whereas the concurrence insists tender alone suffices.
  • To avoid any risk, counsel should:
    • Prepare a full set of defense instructions in advance (as Conley urges);
    • When the court adopts a different version, specify on the record exactly what legal concern (unanimity, burden‑shifting, missing element, etc.) you are preserving.

D. Fourth Amendment Strategy: Standing, Suppression Hearings, and Driveway Evidence

Also notable are the practical Fourth Amendment lessons:

• Defense counsel must present live or documentary proof of residency/interest at the suppression hearing to establish standing; bare assertions in motions are not enough.
• When police discover evidence near driveways, walkways, and mailboxes visible to the public, Kentucky courts are likely to treat that area as open field, not curtilage, absent fences or privacy‑enhancing measures.
• “Fruit of the poisonous tree” arguments require showing that the alleged illegality was at least a “but‑for” cause of the discovery; if officers would inevitably or independently have found the evidence, the exclusionary rule may not apply.

V. Simplifying Key Legal Concepts

For non‑specialists, the following concepts are central to the opinion:

1. Hearsay

An out‑of‑court statement offered to prove the truth of what it says. Example: “Jackson wrote, ‘I did it alone’,” offered to prove that Jackson in fact did it alone.

2. Statement Against Penal Interest (KRE 804(b)(3))

A hearsay statement that, at the time it was made, would expose the speaker to criminal liability (e.g., “I shot the victim”). Such statements can sometimes come in even if the speaker does not testify—but only if there are strong corroborating signs that the statement is trustworthy.

3. Alternative Perpetrator (“aaltperp”) Defense

A defense strategy that says “someone else did it.” It often relies on evidence of another person’s motive, opportunity, and sometimes explicit confessions. Courts scrutinize such evidence for reliability and relevance, because it can be speculative or manufactured.

4. Complicity vs. Facilitation

• Complicity: Intending that the crime be committed and helping make it happen (driving the getaway car knowing the plan, etc.).
• Facilitation: Knowingly providing the means or opportunity (e.g., lending a gun) but being indifferent to whether the crime actually occurs.

5. Curtilage and Open Fields

• Curtilage: The area immediately surrounding a home where private life happens (backyard patio, side yard, enclosed garden). It gets the same Fourth Amendment protection as the house.
• Open Fields: Areas outside the curtilage (even if on private property) where there is no reasonable expectation of privacy (e.g., front fields, unfenced parts of the front yard by the driveway). Police can generally enter and observe such areas without a warrant.

6. Palpable Error

In Kentucky, an unpreserved error can still be corrected on appeal if it is “palpable”: obvious, easily noticeable, and so serious that it threatens the fairness of the entire trial. It is a high bar.

VI. Conclusion

The Supreme Court of Kentucky’s memorandum opinion in Gregory M. Heightchew v. Commonwealth affirms a serious conviction but, more importantly for the law, offers a careful and instructive application of several recurring doctrines.

Most notably, it:

• Clarifies that KRE 804(b)(3)’s “corroborating circumstances” requirement demands a thorough, total‑evidence assessment—including contradictory proof and the declarant’s own admissions of lying;
• Reaffirms that the constitutional right to present a defense does not compel admission of plainly unreliable hearsay, especially when it is cumulative of other alternative‑perpetrator evidence;
• Explains that facilitation instructions are warranted only where the record supports a mental state of true indifference, not where the defendant is the primary mover with clear motive and participation;
• Applies the Dunn/Quintana curtilage test to hold that front yard/driveway areas accessible to the public are open fields not protected by the Fourth Amendment; and
• Confirms, via Brown, that unanimity does not require agreement on which specific object constituted “physical evidence” in a tampering charge, so long as all jurors agree that some physical evidence was tampered with.

While this opinion is unpublished and not binding precedent under RAP 40(D), it is a valuable guide to how Kentucky’s highest court currently understands (and is likely to apply) key evidentiary and constitutional doctrines in serious criminal cases, especially those featuring alternative‑perpetrator claims and contested physical evidence recovered from residential property.