Mandatory KRE 703(b) Admonition on Expert Cross-Examination; Affirmance of Wanton Murder Where Child Accesses Fentanyl

Introduction

In Lauren Baker v. Commonwealth of Kentucky (Supreme Court of Kentucky, Mar. 20, 2025), the Court affirmed convictions for wanton murder, importing fentanyl, and two counts of first-degree trafficking arising from the death of Baker’s two-year-old son, Jaxon, from acute fentanyl intoxication. The case centers on whether the evidence permitted a jury to find that Baker’s conduct—storing fentanyl and drug paraphernalia in a manner accessible to a toddler—manifested “extreme indifference to human life” sufficient for wanton murder under KRS 507.020(1)(b). The appeal also raised evidentiary and instructional issues: the scope of cross-examining a defense expert with Cabinet for Health and Family Services (CHFS) records under KRE 703, the trial court’s refusal to admonish the jury as required by KRE 703(b), and the denial of a reckless homicide instruction.

The Supreme Court affirmed on all grounds. Most notably, it held that a KRE 703(b) admonition is mandatory upon request when inadmissible facts or data are elicited to test an expert’s opinion; although the trial court erred in refusing to admonish, the error was harmless. The Court also clarified the sufficiency of evidence for wanton murder in the context of fatal fentanyl exposure of a child and rejected the need for a reckless homicide instruction where the evidence showed the defendant’s awareness of the risk.

Publication status: The opinion is designated “Not to be Published” under RAP 40(D). It is not binding precedent in Kentucky courts but may be cited for consideration when no published opinion adequately addresses the issue, with the required copy provided to the court and parties.

Summary of the Opinion

Directed verdict/wanton murder: The evidence permitted a reasonable juror to find that Baker’s wanton conduct—keeping fentanyl and associated paraphernalia in a place accessible to her toddler despite knowing fentanyl’s lethality—occurred under circumstances manifesting extreme indifference to human life. The trial court properly denied a directed verdict.
Prosecutor’s closing argument: No palpable error arose from the Commonwealth’s response to defense arguments about Baker’s love for her child and post-incident efforts (Narcan and CPR). The remarks were within the wide latitude afforded in closing.
Cross-examination of defense expert with CHFS records: Allowing cross-examination into CHFS records that the expert identified among her review materials was within KRE 703 and Kentucky’s “wide open” approach to cross-examination. The records were not admitted; their use was to test the bases of the expert’s opinions.
KRE 703(b) admonition: The trial court erred by refusing to give the jury, upon defense request, the mandatory admonition limiting the use of otherwise inadmissible facts or data referenced during expert cross-examination. However, the error was harmless under RCr 9.24 given the weight of the other evidence and the constrained use of the records.
Reckless homicide instruction: The trial court did not abuse its discretion by declining to instruct on reckless homicide because the evidence showed Baker’s awareness of the lethal risk, precluding recklessness (failure to perceive the risk). Even if error, the omission would be harmless given the jury’s choice of wanton murder over second-degree manslaughter.
Cumulative error: No accumulation of harmless errors rendered the trial fundamentally unfair.

Analysis

Factual and Procedural Background in Context

After using stimulus funds to purchase nearly an ounce of fentanyl in Cincinnati, Baker stored fentanyl in a purse tied to an iron headboard in the downstairs bedroom, where she sometimes napped with her toddler. She acknowledged knowing fentanyl’s lethal danger—keeping Narcan on hand and previously using it on her partner—and had previously observed Jaxon get behind the bed and even interact with drug paraphernalia (a burnt spoon) a year earlier. On the day of the incident, after injecting herself and napping with Jaxon, she awoke to find him unresponsive, with drug-related items strewn about. Jaxon’s fentanyl blood concentration was 21.4 ng/mL (well above the approximately 3 ng/mL lethal level for a non-tolerant adult), with no metabolites, indicating rapid death.

The defense presented an addiction medicine expert, Dr. Kelly Clark, on opioid use disorder (OUD), the adequacy of methadone treatment, and stigma, and emphasized Baker’s precautions and rescue efforts as inconsistent with “extreme indifference.” The Commonwealth cross-examined Dr. Clark about CHFS records that, among other things, referenced parenting education and counseling about storing methadone in a locked container. The trial court permitted the questioning, but refused a defense request for a KRE 703(b) admonition limiting the jury’s use of those otherwise inadmissible facts.

Precedents Cited and Their Influence

Directed verdict standard: Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (trial court must draw all reasonable inferences for the Commonwealth; directed verdict only if it would be clearly unreasonable for a jury to find guilt).
Wanton murder and extreme indifference:
- Elliot v. Commonwealth, 976 S.W.2d 416 (Ky. 1998) (defining wanton murder under KRS 507.020(1)(b)).
- Brown v. Commonwealth, 174 S.W.3d 421 (Ky. 2005), and Brown v. Commonwealth, 975 S.W.2d 922 (Ky. 1998) (extreme indifference requires circumstances beyond mere wantonness; factors include exceptionally high risk, actor’s clear awareness, and minimal social utility).
- McGinnis v. Commonwealth, 875 S.W.2d 518 (Ky. 1994) (wantonness suffices for second-degree manslaughter; murder needs added extreme indifference circumstance).
- Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 2004) and Ramsey v. Commonwealth, 157 S.W.3d 194 (Ky. 2005) (whether circumstances manifest extreme indifference is for the jury).
Prosecutorial argument: Commonwealth v. Mitchell, 165 S.W.3d 129 (Ky. 2005) and Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010) (wide latitude in closing; may draw reasonable inferences and respond to defense arguments). Palpable error standard from RCr 10.26 and Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006).
Expert cross-examination and KRE 703:
- Commonwealth v. Armstrong, 556 S.W.3d 595 (Ky. 2018) (Kentucky follows “wide open” cross-examination; cross may reach the full limits of the dispute).
- Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020) (trial courts should strictly adhere to KRE 703(b)’s safeguards—trustworthiness, necessity, unprivileged status—when otherwise inadmissible facts are used to challenge an expert’s opinion; failure may be harmless absent undue prejudice).
- KRE 703(a)-(c) (experts may rely on inadmissible information reasonably relied upon in the field; opposing party can test basis; upon request court shall admonish the jury under 703(b)).
“Shall” is mandatory: Richardson v. Commonwealth, 645 S.W.3d 425 (Ky. 2022); Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010); KRS 446.010(2) (statutory “shall” denotes mandatory duty).
Jury instructions: Commonwealth v. Caudill, 540 S.W.3d 364 (Ky. 2018) (abuse of discretion); Pozo-Illas v. Commonwealth, 671 S.W.3d 118 (Ky. 2023) and Harris v. Commonwealth, 313 S.W.3d 40 (Ky. 2010) (lesser-included instruction required only if the evidence supports it); Sanders v. Commonwealth, 301 S.W.3d 497 (Ky. 2010) (no duty to instruct on unsupported theories).
Error standards: RCr 9.24 (harmless error); RCr 10.26 (palpable error); Brewer and Schoenbachler v. Commonwealth, 95 S.W.3d 830 (Ky. 2003) (palpable error requires a substantial possibility that the result would have been different without the error). Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002) and Brown, 313 S.W.3d 577, 631 (Ky. 2010) (cumulative error doctrine).

Legal Reasoning

1) Sufficiency for Wanton Murder and the Extreme Indifference Standard

The Court applied the Brown extreme-indifference framework (high risk; actor’s awareness; minimal social utility). The record showed:

Exceptionally high risk: A non-tolerant adult may die around 3 ng/mL; Jaxon’s concentration was 21.4 ng/mL, with no metabolites, showing swift lethal exposure.
Actor’s awareness: Baker kept Narcan at home due to fentanyl’s lethality; had used it before; had found Jaxon with drug paraphernalia previously; knew he could access behind the bed; nonetheless stored fentanyl and paraphernalia in the bedroom and napped with him there.
Minimal social utility: There is no social utility in storing deadly contraband in a manner accessible to a toddler, akin to leaving a loaded gun or knife within reach.

The jury’s role is to decide whether such circumstances manifest extreme indifference. Drawing all inferences for the Commonwealth (Benham), it was not clearly unreasonable for a jury to find wanton murder. The Court emphasized that post-incident efforts (administering Narcan, calling 911, remorse) do not negate the earlier wanton disregard embedded in the storage practices and environment.

2) Prosecutor’s Closing and Palpable Error

The prosecutor urged jurors not to allow Baker’s love for her child, rescue efforts, or remorse to eclipse the elements of wanton murder. In light of defense argument that these factors negated extreme indifference, the Commonwealth’s response was within the wide latitude afforded to argue reasonable inferences and reply to defense themes (Mitchell, Padgett). Because no objection was made, review was for palpable error; none was found.

3) Cross-Examination of the Defense Expert With CHFS Records and KRE 703

Kentucky permits “wide open” cross-examination (Armstrong). Under KRE 703, an expert may rely on otherwise inadmissible information; the opposing party may explore that basis. Here, defense disclosures listed CHFS records among materials reviewed, and at the Daubert hearing Dr. Clark referenced having relied in part on those records. The Commonwealth’s cross used limited aspects of those records to:

Probe the expert’s knowledge base and credibility;
Challenge her opinions, especially regarding OUD stigma and Baker’s knowledge/education about safe storage.

Critically, the CHFS records were not admitted as exhibits; the jury saw no documents, and the cross-examination on them was brief compared to other topics (e.g., clinic attendance and methadone compliance). The Court held that permitting this cross was within the evidentiary rules and not an abuse of discretion.

4) The KRE 703(b) Admonition Is Mandatory When Requested

KRE 703(b) directs that upon request the court shall admonish the jury to consider otherwise inadmissible facts or data disclosed to test an expert’s opinion only for the limited purpose of evaluating that opinion’s validity and probative value. Citing Richardson, Fox, and KRS 446.010(2), the Court reaffirmed that “shall” is mandatory, not discretionary. The trial court erred by refusing the requested admonition because it disagreed with the defense’s argument. The proper inquiry is not whether the judge agrees with counsel’s theory, but whether KRE 703(b) is triggered; once requested, the admonition must be given.

Nevertheless, the error was harmless under RCr 9.24. The underlying facts were cumulative of Baker’s admitted knowledge of drug dangers; the records were not admitted; the discussion was limited; and the overall proof of wanton murder was strong. The Court also referenced Exantus’s instruction that trial courts should strictly apply 703(b)’s safeguards; however, here, even assuming shortcomings, there was no undue prejudice affecting substantial rights.

5) No Duty to Instruct on Reckless Homicide

Recklessness under KRS 501.020(4) is failure to perceive a substantial and unjustifiable risk. The proof showed the opposite: Baker perceived fentanyl’s lethal risk (Narcan on hand, past overdose rescue, prior toddler access issues) and nonetheless stored it in an accessible environment. Because the evidence did not support a theory of mere failure to perceive the risk, no reckless homicide instruction was warranted (Pozo-Illas/Harris/Sanders). Moreover, the jury rejected the already-instructed lesser offense of second-degree manslaughter, strongly indicating that even if a reckless homicide instruction had been given, the verdict would not have changed; any omission would be harmless.

6) No Cumulative Error

With no individual reversible error and the 703(b) error deemed harmless, there was no aggregation of prejudice rendering the trial fundamentally unfair (Furnish; Brown 2010).

Impact and Practical Implications

A. Evidentiary Practice Under KRE 703

Mandatory admonition: When cross-examination of an expert elicits otherwise inadmissible facts or data to test the basis of the opinion, a KRE 703(b) admonition must be given upon request. Judges should be prepared with a standard admonition; counsel should make a timely, explicit request.
Scope of cross: Kentucky’s “wide open” cross allows probing the full dispute and the expert’s basis, even with materials that are otherwise inadmissible and without admitting the materials themselves. This decision reinforces that the jury’s exposure can be cabined with an admonition to avoid misuse of those facts as substantive evidence.
Exantus compliance: Although the Court again stresses strict adherence to KRE 703(b) safeguards, prejudice remains the touchstone; failures may be harmless where the challenged facts are cumulative, brief, or peripheral, and where the documents are not admitted.

B. Substantive Criminal Law: Extreme Indifference in Child Fentanyl Cases

This opinion underscores that storing fentanyl and drug paraphernalia in places accessible to toddlers, especially amid prior indications of access and explicit awareness of lethality, readily supports a finding of extreme indifference to human life for wanton murder.
Post-incident remorse or rescue efforts, while relevant in mitigation or sentencing, do not negate the earlier circumstances of extreme indifference.
For prosecutors, the Brown factors (risk magnitude; actor awareness; social utility) provide a clear roadmap to prove wanton murder in child overdose contexts.

C. Jury Instructions on Lesser-Included Offenses

Reckless homicide instructions are improper where the defendant’s awareness of risk is evident; trial courts should resist over-instructing on unsupportable lesser theories.
Verdict dynamics matter: A jury’s selection of the greater offense despite a mid-level lesser option (second-degree manslaughter) can support a harmless-error conclusion regarding the omission of an even lesser instruction (reckless homicide).

D. Limits and Citability

As an unpublished opinion, this case is not binding but has persuasive value, especially where no published Kentucky case squarely addresses a KRE 703(b) admonition in similar expert cross-examination settings or the application of extreme indifference to child fentanyl fatalities.
Counsel citing it must comply with RAP 40(D) by providing a full copy and identifying it as unpublished.

Complex Concepts Simplified

Wantonness (KRS 501.020): The defendant is aware of and consciously disregards a substantial and unjustifiable risk; the disregard grossly deviates from what a reasonable person would do.
Extreme indifference to human life (KRS 507.020(1)(b); Brown factors): Circumstances showing a high risk of death, known to the defendant, coupled with conduct of little or no social utility—reflecting a high disregard for life beyond basic wantonness.
Recklessness (KRS 501.020(4)): The defendant fails to perceive a substantial and unjustifiable risk; less culpable than wantonness because it turns on lack of awareness.
Directed verdict (Benham): The court removes the case from the jury only if, taking the Commonwealth’s evidence as true, no reasonable juror could find guilt beyond a reasonable doubt.
KRE 703 and expert bases: Experts may rely on hearsay or other inadmissible information if experts in the field reasonably rely on it. Opposing parties may cross-examine about such bases. If otherwise inadmissible facts are disclosed to the jury to test the opinion, the court, upon request, must admonish the jury to use those facts only to evaluate the expert’s opinion, not as substantive proof.
Harmless vs. palpable error: Harmless error (RCr 9.24) does not affect substantial rights and does not warrant reversal. Palpable error (RCr 10.26) is an unpreserved error that creates a substantial possibility of a different result if corrected and threatens the fairness of the proceedings.

Conclusion

The Supreme Court of Kentucky’s decision in Lauren Baker affirms a wanton murder conviction in a tragic child fentanyl death by carefully applying the Brown extreme-indifference framework: a known, exceptionally high risk ignored in favor of conduct with no social utility. On the evidentiary front, the Court delivers a clear directive to trial judges: KRE 703(b)’s admonition is mandatory upon request when otherwise inadmissible facts are disclosed to test an expert’s opinion. While the refusal to admonish was harmless here, the Court’s statutory construction—anchored in the mandatory force of “shall”—is a salient practice point for Kentucky courtrooms.

For future cases, this opinion provides concrete guidance in three domains: (1) prosecutors can meet wanton murder’s “extreme indifference” threshold in child overdose scenarios by proving awareness, access, and lack of social utility; (2) courts must give the 703(b) admonition on request, even if they deem the cross-examination proper; and (3) reckless homicide instructions are unwarranted when the evidence shows the defendant perceived the lethal risk. Although unpublished, the opinion has persuasive force in the evolving jurisprudence at the intersection of opioid use, child safety, and Kentucky criminal law.