KRE 412 hearings must include all co‑defendants; interpreter’s translations of text messages do not trigger Confrontation: Commentary on Tzunux‑Zacarias v. Commonwealth (Ky. 2025)

KRE 412 hearings must include all co‑defendants; interpreter’s translations of text messages do not trigger Confrontation: Commentary on Tzunux‑Zacarias v. Commonwealth (Ky. 2025)

Note on citation status: This is a “Not to be Published” opinion under Kentucky RAP 40(D). It is not binding precedent but may be cited for consideration if no published opinion adequately addresses the issue. The analysis below highlights the opinion’s doctrinal clarifications and practical guidance.

Introduction

This memorandum opinion from the Supreme Court of Kentucky affirms the convictions and 30‑year sentences of brothers Isabel and Mario Tzunux‑Zacarias for complicity to rape, complicity to burglary, and complicity to kidnapping, following a joint trial arising from a home invasion and sexual assault. The jury acquitted both defendants of sodomy. The case presents a comprehensive suite of evidentiary and procedural issues commonly seen in multi‑defendant sexual assault prosecutions, including:

  • How appellate courts handle incomplete or inaudible trial records and the use of narrative statements under RAP 25;
  • Confrontation Clause and Bruton/Gray/Samia doctrine in admitting a non‑testifying co‑defendant’s statement without a limiting instruction;
  • Whether a lead detective may summarize defendant statements and the interplay with KRE 106 (rule of completeness) and Gordon’s prohibition on “interpreting” recordings;
  • Admissibility of translated text messages where the translator does not testify, and whether the interpreter is a “witness” for Confrontation Clause purposes;
  • Scope of Kentucky’s rape‑shield rule (KRE 412), including who has a right to attend and be heard at the pretrial hearing;
  • Rule‑of‑completeness errors and harmlessness analysis relating to threatening post‑incident texts;
  • Miranda validity for non‑native English speakers receiving Spanish‑language warnings from an officer’s phone;
  • For‑cause juror challenges where the juror has personal ties to sexual assault victims and a prior relationship with defense counsel;
  • Expert testimony by a SANE nurse about the probability that the victim’s injuries could have resulted from consensual sex; and
  • Directed verdict standards on consent and the “incidental restraint” limitation on kidnapping under KRS 509.050.

Although unpublished, the opinion both reiterates core principles and articulates notable clarifications—most significantly that all co‑defendants are “parties” entitled to attend a KRE 412 hearing, and that a translator is a conduit rather than a Confrontation Clause “witness” even when translating written text messages, over a thorough concurrence urging caution on the latter point.

Summary of the Opinion

  • Record management (RAP 25): Narrative statements settled and approved by the trial court may supplement an incomprehensible bench‑conference record; if both the original and narrative are insufficient, the appellate court presumes the record supports the trial court’s ruling.
  • Co‑defendant statements: Failure to give a requested limiting instruction under Bruton/Gray/Richardson/Quisenberry was error but harmless where each defendant’s admitted conduct essentially mirrored the other’s and the summaries did not facially inculpate the co‑defendant.
  • Detective summaries: The lead detective’s testimony summarizing each defendant’s own statements was permissible; not misleading under KRE 106 and did not violate Gordon’s limitation because he testified from recollection rather than “interpreting” a recording for the jury.
  • Translated texts: Admission of Spanish‑language text messages via a colleague’s English translations without the translator testifying did not violate the Confrontation Clause; the interpreter functioned as a “mere conduit.” Defense showed no material inaccuracy; no hearsay or Lopez problem. A concurrence would limit this doctrine and would have found error but harmless.
  • KRE 412 (rape‑shield): Exclusion of alleged prior consensual sexual conduct (including use of restraints) was proper under KRE 403 balancing, despite the consent exception in KRE 412(b)(1)(B). The court clarified that all co‑defendants are “parties” with a right to attend and be heard at the KRE 412 hearing; excluding Mario was error but harmless.
  • Threatening text and completeness: Admission of Mario’s post‑assault threatening text was proper against him (party‑opponent), but hearsay error as to Isabel. The court held the trial court erred under KRE 106 by excluding a contemporaneous follow‑up exchange (“I’ve done nothing to you” / “I know”), but the error was harmless given the overwhelming evidence and the context (explaining the victim’s absence).
  • Miranda: The Commonwealth proved knowing and intelligent waivers by both defendants; Spanish‑language warnings presented on an officer’s phone sufficed, and no evidence undermined their adequacy or understanding.
  • Juror 149: Denial of a for‑cause strike was not an abuse of discretion; prior exposure to sexual assault and a past attorney‑client relationship with defense counsel did not establish bias under the totality of circumstances.
  • SANE nurse testimony: It was permissible for the SANE nurse to opine that the injuries were not “probable” from consensual sex; in any event, the defense opened the door to this line of opinion on cross, triggering curative admissibility.
  • Directed verdict: Properly denied. Circumstantial evidence suffices; the proof of lack of consent was adequate without the victim’s testimony. Kidnapping was not “incidental” under KRS 509.050 given duct‑taping and blindfolding during the assault and leg‑binding after.

Analysis

Precedents cited and how they shaped the decision

  • Record sufficiency and narrative statements: Commonwealth v. Thompson, 697 S.W.2d 143 (Ky. 1985); King v. Commonwealth, 384 S.W.3d 193 (Ky. App. 2012). The Court reaffirmed that absent a complete and comprehensible record, appellate courts presume the omitted or unclear portions support the trial court. RAP 25 enables a “settled and approved” narrative statement to supplement (not necessarily replace) the official record.
  • Confrontation Clause—co‑defendant statements:
    • Bruton v. United States, 391 U.S. 123 (1968) and Gray v. Maryland, 523 U.S. 185 (1998): bar admission of a non‑testifying co‑defendant’s facially incriminating testimonial statement even with a limiting instruction.
    • Richardson v. Marsh, 481 U.S. 200 (1987): allows redacted statements not referring to the co‑defendant’s existence, with a proper limiting instruction.
    • Samia v. United States, 599 U.S. 635 (2023): confirms admission of a co‑defendant’s confession that does not directly inculpate the other, coupled with a limiting instruction.
    • Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011): in Kentucky, if such a redacted statement is admitted, a limiting instruction “should always be given” upon request. The Court applied this rule and found the trial court erred by omitting the limiting instruction, but the error was harmless given the symmetry of the two defendants’ admissions.
  • Completeness and witness “interpretation” of recordings:
    • KRE 106 and Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006); Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009): the rule of completeness applies only when necessary to avoid misleading the jury; the court used this doctrine to fault exclusion of the restorative follow‑up text exchange.
    • Gordon v. Commonwealth, 916 S.W.2d 176 (Ky. 1995): witnesses should not “interpret” an audio recording for the jury; but they may testify to their independent recollection. The Court held the detective’s summaries were recollection‑based and not an improper interpretation.
  • Interpreter as language conduit:
    • Lopez v. Commonwealth, 459 S.W.3d 867 (Ky. 2015): an interpreter is a conduit for a declarant’s statement; translation does not convert a party admission into hearsay. The Court extended this conduit rationale to the translation of written text messages (majority), rejecting a Confrontation Clause objection.
    • State v. Lopez‑Ramos, 929 N.W.2d 414 (Minn. 2019): persuasive authority endorsing translator‑as‑conduit for Confrontation purposes; adopted by the majority.
    • Concurring caution: The concurrence cited a federal circuit split (e.g., United States v. Orm Hieng, 9th Cir.; United States v. Charles, 11th Cir.) and treatises urging a narrower application for non‑contemporaneous translations of writings; it would have required the translator or a qualified witness to testify, but found any error harmless.
  • KRE 412 (rape‑shield), relevance and prejudice:
    • Powers v. Commonwealth, 626 S.W.3d 563 (Ky. 2021); Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010): KRE 412 protects victims and avoids collateral character attacks.
    • Commonwealth v. Dunn, 899 S.W.2d 492 (Ky. 1995): an “obvious tilt toward exclusion.”
    • Mayo v. Commonwealth, 322 S.W.3d 41 (Ky. 2010): prior consensual acts do not imply consent on the charged occasion.
    • New clarification: Under KRE 412(c)(2), “the victim and parties” have a right to attend and be heard; in multi‑defendant trials, all co‑defendants are “parties,” even if only one moves under KRE 412 and despite separate case numbers. Excluding Mario was error but harmless.
  • Harmless error standards:
    • Staples v. Commonwealth, 454 S.W.3d 803 (Ky. 2014); Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998): constitutional errors (e.g., Confrontation) may be harmless beyond a reasonable doubt.
    • Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009); Kotteakos v. United States, 328 U.S. 750 (1946): non‑constitutional errors are harmless if no substantial influence on the verdict.
  • Miranda and waiver: Miranda v. Arizona, 384 U.S. 436 (1966); Moran v. Burbine, 475 U.S. 412 (1986); Dillon v. Commonwealth, 475 S.W.3d 1 (Ky. 2015); Cox v. Commonwealth, 641 S.W.3d 101 (Ky. 2022). The Commonwealth must prove a voluntary, knowing, intelligent waiver given the totality of the circumstances; Spanish warnings on an officer’s phone were adequate absent contrary proof.
  • Juror strikes for cause: RCr 9.36(1); Walker v. Commonwealth, 288 S.W.3d 729 (Ky. 2009); Thompson v. Commonwealth, 147 S.W.3d 22 (Ky. 2004); Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007); Little v. Commonwealth, 422 S.W.3d 238 (Ky. 2013); Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010); Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999). The court applied a totality approach and found no reasonable ground to believe Juror 149 could not be fair and impartial.
  • Expert opinion (SANE) and curative admissibility: Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997): medical experts may opine in probabilistic causal terms; Norris v. Commonwealth, 89 S.W.3d 411 (Ky. 2002): a party who opens the door may trigger curative admissibility. The SANE testimony that such injuries were not “probable” from consensual sex was within bounds—and, alternatively, permissible because the defense initiated the topic.
  • Directed verdict and “incidental restraint” in kidnapping: Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (directed‑verdict standards); Southworth v. Commonwealth, 435 S.W.3d 32 (Ky. 2014) (circumstantial evidence suffices); KRS 509.050 (incidental restraint). The duct‑taping of the victim’s eyes/face during the rape and leg‑binding after exceeded restraint ordinarily incident to rape.

Legal reasoning, issue by issue

1) Handling an incomplete trial record (RAP 25)

The Court needed to navigate a bench‑conference audio record marred by static. It affirmed that trial courts may settle and approve narrative statements to cure deficiencies and that such narratives can be used to supplement—though not necessarily to replace—the original record. The logical sequence the Court adopted:

  1. Use the original record where understandable;
  2. Use the settled and approved narrative statement to supplement where the original is incomprehensible; and
  3. If ambiguity persists even after (1) and (2), presume the record supports the trial court.

This structured triage blends RAP 25 with the long‑standing presumption from Thompson that an incomplete appellate record supports the judgment below.

2) Co‑defendant statements, Bruton/Gray/Samia, and limiting instructions

Neither defendant’s statements—admitted through a detective’s testimony—“directly incriminated” the other; each summary described only the declarant’s own conduct. Under Bruton/Gray, facial incrimination is the danger; under Samia and Richardson, non‑incriminating redacted statements can be admitted with a limiting instruction. Kentucky’s Quisenberry goes further: when admitted in a joint trial, a limiting instruction should always be given upon request. Because both defendants requested one, omission was error. The Court found harmlessness beyond a reasonable doubt: each defendant’s statement independently provided substantially the same incriminating facts about both men’s conduct; thus, admitting the other’s neutral summary without an instruction did not reasonably contribute to the verdicts.

3) Detective summaries, rule of completeness (KRE 106), and Gordon

The defense claimed the detective’s summarizations were misleading and violated the rule of completeness. The Court analyzed the specific exchanges. On “consent,” the suspect’s “okay, yeah” responses could reasonably be construed as agreement, and the defense had the opportunity to cross‑examine and propose an alternative interpretation. On the “card” entry, the Spanish exchange included the officer‑translator’s rendering that “they were gonna use the card,” which fairly encompassed both defendants. Because the detective testified from recollection (no recording was played), Gordon’s bar on “interpreting” a recording did not apply. And because the summaries were not misleading, KRE 106 did not require admission of the entire interview.

4) Translated text messages: interpreter as conduit vs. Confrontation “witness”

The state introduced Spanish‑language text threads translated into English by a Spanish‑speaking officer who did not testify at trial. The majority held that an interpreter is a mere conduit; consequently, the translation does not add a second hearsay layer and the translator is not a Confrontation Clause “witness” requiring cross‑examination. The Court relied on Lopez (Ky. 2015) and persuasive authority (Lopez‑Ramos, Minn. 2019). Because the defense showed no meaningful inaccuracy (and identified only a trivial “one/uno” phrasing issue via counsel argument without proof), the translations were admissible.

Concurrence’s caution: A thorough concurrence would confine the language‑conduit rationale to contemporaneous translations of oral statements. For non‑contemporaneous translations of writings (like text messages), the concurrence would require either a qualified translator at trial or the transcript/translation protocols used for English recordings: attempt a stipulated translation; otherwise, competing translations and foundation from a qualified witness (akin to FRE/KRE 702 qualifications). The concurring view would have deemed admission via the detective’s testimony hearsay/Confrontation error but harmless given the overall proof and the defense’s failure to identify inaccuracies or offer an alternative translation.

5) KRE 412 rape‑shield: admissibility of prior sexual history and who may attend the hearing

Although KRE 412(b)(1)(B) includes a defendant‑consent exception for prior sexual acts with the accused, the Court emphasized the embedded “otherwise admissible” condition—triggering KRE 403 balancing. Here, the proffer was unsubstantiated and of minimal probative value on consent (see Mayo), while the risk of unfair prejudice and embarrassment was substantial. The trial court properly excluded the evidence.

Important clarification: KRE 412(c)(2) gives “the victim and parties a right to attend and be heard.” In multi‑defendant prosecutions, all co‑defendants are parties with those rights—even if only one filed the motion and despite separate case numbers. Excluding Mario and his counsel from the hearing was error but harmless because Mario never filed a separate motion or identified additional admissible evidence.

6) Threatening post‑incident text and the rule of completeness

Mario texted the victim: “if something happens to me, I’ll kill you.” The trial court admitted this to explain the victim’s absence and as a party‑opponent statement by Mario. As to Isabel, admission was hearsay error. The trial court also rejected admission of a contemporaneous exchange (“I’ve done nothing to you” / “I know”). The Supreme Court held exclusion of the follow‑up violated KRE 106 because, in context, it could change how the threat was perceived (as attempted intimidation against a false accuser rather than obstruction of a truthful accuser). The Court deemed both errors harmless against the overwhelming evidence and the limited use of the message as context.

7) Miranda: knowing, intelligent waivers for non‑native speakers

Both brothers reported limited English proficiency. Each received English Miranda warnings and was shown a Spanish‑language warning/waiver on an officer’s phone, spent time reviewing it, acknowledged understanding, and signed a waiver. No record evidence undermined the propriety of the Spanish warnings. Applying Miranda/Moran/Dillon/Cox, the Court upheld the trial court’s findings that the waivers were knowing and intelligent under the totality of the circumstances.

8) Juror 149: prior exposure to sexual assault and past attorney‑client relationship

Considering the juror’s ties to sexual assault victims, equivocal responses about penalties and anxiety, and a prior representation by defense counsel in a divorce, the Court applied RCr 9.36 and Walker’s totality approach. It found no reasonable ground to believe the juror could not be fair and impartial. The prior professional relationship was with defense counsel—not the prosecutor (distinguishing Fugate). The equivocation resembled understandable uncertainty before hearing evidence, not disqualifying bias.

9) SANE nurse expert testimony and curative admissibility

The SANE nurse testified that injuries like those documented were not “probable” with consensual sex, and that hematuria after sex is not normal. Under Stringer, a qualified medical expert may opine in probabilistic causal terms to aid the jury. Moreover, the defense opened the door by eliciting that consensual sex can cause injuries, making the Commonwealth’s clarifying re‑direct proper under curative admissibility (Norris). No Daubert hearing was required on this record.

10) Directed verdict: sufficiency without the victim’s testimony; kidnapping beyond “incidental restraint”

Under Benham, the evidence must allow a reasonable juror to find guilt beyond a reasonable doubt when viewed in the Commonwealth’s favor; circumstantial evidence suffices (Southworth). The State proved non‑consent with: pre‑attack texts planning entry and “ties,” admissions that the victim did not invite them and duct tape was used, the SANE findings (including multiple lacerations and bruising), and post‑attack leg binding. On kidnapping, KRS 509.050’s “incidental restraint” exception did not apply: blindfolding and duct‑taping during the assault and binding legs after plainly exceeded restraint ordinarily incident to rape.

Impact and practice guidance

While unpublished, the opinion offers concrete, trial‑level guidance in Kentucky (and persuasive elsewhere):

  • RAP 25 triage: Appellate practitioners should proactively settle narrative statements where audio is incomprehensible. On appeal, expect the court to: (1) use the original record when audible; (2) supplement with the settled narrative; and (3) presume the record supports the trial court if gaps remain.
  • Bruton/Samia compliance: In joint trials, if a non‑testifying co‑defendant’s redacted statement is used, request a limiting instruction. Trial judges should give it; appellate courts may find omission harmless only where independent evidence is overwhelming and statements are strictly neutral as to the co‑defendant.
  • Detective summaries: Prosecutors can use recollection‑based summaries of a defendant’s own statement, but must guard against embedding references to a co‑defendant. Defense counsel should use cross‑examination to challenge ambiguity.
  • Translations of writings: The majority’s conduit analysis permits admitting translated texts without the translator testifying, absent a showing of inaccuracy. The concurrence, however, flags a live split and urges best practices:
    • Attempt a stipulated translation; otherwise offer a qualified translator at trial;
    • Be prepared to defend translation methodology and language choices;
    • Defense should preserve objections by (a) proposing an alternative translation, (b) producing a qualified linguist, and (c) articulating material inaccuracies.
  • KRE 412 hearing rights: Trial courts should ensure that all co‑defendants (and the victim) are afforded the right to attend and be heard. Counsel should insist on inclusion even if not the movant.
  • KRE 106 completeness: When the State introduces a fragmentary communication (like a threatening text), defense should move contemporaneously to admit any qualifying context that “ought in fairness” to accompany it; trial courts should err on the side of contextual clarity.
  • Miranda with LEP defendants: Use written warnings/waivers in the defendant’s preferred language; preserve copies of the exact warnings shown; record the process. Defense should probe the content shown and the defendant’s comprehension.
  • SANE testimony: Carefully frame permissible opinion: probability/possibility and injury patterns are generally admissible; ultimate‑issue “rape occurred” opinions are not. Defense questions about consensual injury risk may open the door to stronger State opinions on improbability.
  • Kidnapping vs. incidental restraint: Binding and blindfolding—especially post‑offense restraints—will typically defeat the incidental‑restraint limitation in KRS 509.050.

Complex concepts simplified

  • Confrontation Clause (Sixth Amendment): You have the right to confront (cross‑examine) the “witnesses” against you. “Witnesses” are those who make testimonial statements to prove facts. A co‑defendant’s custodial confession is testimonial; if he does not testify, his statement generally cannot be used against you unless it is redacted to avoid implicating you and is accompanied by a limiting instruction.
  • Bruton/Gray/Samia: The Supreme Court forbids admitting a non‑testifying co‑defendant’s confession that expressly implicates you—even with a jury instruction (Bruton, Gray). But if the statement does not name or refer to you at all, it can be admitted with a limiting instruction telling jurors to use it only against the speaker (Richardson, Samia).
  • Interpreter as “conduit”: When an interpreter translates a person’s statement, many courts treat the interpreter as a neutral channel and the words as the speaker’s own, not the interpreter’s. That typically avoids hearsay and Confrontation Clause issues. The debate is hotter when the translation is a later conversion of a text message rather than a live interpretation of a conversation.
  • KRE 412 (rape‑shield): Generally blocks evidence of a victim’s other sexual behavior. There is a narrow consent exception for conduct with the accused, but the evidence must still pass KRE 403 balancing (probative value must not be substantially outweighed by unfair prejudice/embarrassment).
  • KRE 106 (completeness): If a party introduces part of a writing or recording, the other party can require related parts to be introduced at the same time if fairness demands it to avoid misleading the jury.
  • Harmless error: Even if the trial court made a mistake, a conviction stands if the appellate court is convinced the error did not affect the outcome. Constitutional errors require the State to show the error was harmless beyond a reasonable doubt.
  • Miranda waiver (knowing and intelligent): The suspect must understand the rights and the consequences of waiving them, considering language, comprehension, and circumstances. Written warnings in the suspect’s language are best practice.
  • Incidental restraint (kidnapping): You cannot be convicted of kidnapping if the restraint is only what is normally involved in committing another crime (like holding someone down during a rape). But extra restraints—like blindfolding, duct‑taping, or binding limbs—often go beyond what’s incidental.

Conclusion

This unpublished decision methodically affirms the convictions while delivering several important clarifications and reminders:

  • When redacted co‑defendant statements are admitted in a joint trial, a limiting instruction is required upon request; omitting it can be harmless where each defendant independently supplies the same incriminating facts.
  • Detective summaries of a defendant’s own statement are permissible when they reflect recollection rather than “interpretation” of recordings, and when not misleading under KRE 106.
  • In a significant application of Kentucky’s language‑conduit doctrine, the majority holds that translator testimony is not required for the admissibility of translated text messages, absent a showing of inaccuracy—though a detailed concurrence urges narrowing this rule in future cases.
  • The Court fortifies KRE 412 procedure by clarifying that all co‑defendants are “parties” entitled to attend and be heard at rape‑shield hearings, even if only one files the motion and despite separate case numbers.
  • Completeness matters: where a threatening text is introduced, contextual follow‑ups that could change its meaning “ought in fairness” to come in with it.
  • Miranda warnings delivered in a defendant’s language—here via a phone display—support a knowing and intelligent waiver when the defendant reviews and acknowledges understanding.
  • SANE nurses may offer probability‑based opinions on whether injury patterns are consistent with consensual sex; defense exploration of this topic can broaden the scope of permissible re‑direct.
  • Robust circumstantial evidence can sustain lack‑of‑consent findings without victim testimony; duct‑taping during and after the offense supports kidnapping beyond incidental restraint.

Collectively, the opinion gives trial courts and litigants a pragmatic roadmap on record preservation, joint‑trial evidentiary boundaries, rape‑shield hearing participation, and translation evidence—topics that recur with frequency in complex, multi‑defendant prosecutions. Practitioners should heed both the majority’s holdings and the concurrence’s cautionary guidance on translated writings to build cleaner records, reduce reversible risk, and sharpen evidentiary foundations in future cases.

Case Details

Year: 2025
Court: Supreme Court of Kentucky

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