No Continuance Absent Specific, Articulable Prejudice from Late-Disclosed Misconduct of a Non‑Testifying Officer

Introduction

This commentary examines the Supreme Court of Kentucky’s unpublished memorandum opinion in Roderick Whitney v. Commonwealth of Kentucky (rendered March 20, 2025), affirming the Henry Circuit Court’s denial of a defense motion to continue the trial following late disclosure of a disciplinary report against the original investigating officer. Although designated “Not to be Published,” under RAP 40(D) such decisions may be cited for the Court’s consideration if no published opinion adequately addresses the issue, and when provided in full to the court and parties. This opinion is a useful, persuasive synthesis of existing Kentucky law on trial continuances, especially where late-disclosed impeachment material concerns a non-testifying officer and the defense does not identify specific, articulable prejudice.

The case arose from allegations that Whitney took three minor girls from an apartment to his house and sexually abused one of them (T.G., age 10). A jury convicted Whitney of kidnapping a minor, two counts of unlawful imprisonment, and first-degree sexual abuse of a victim under twelve; he was also found to be a second-degree persistent felony offender (PFO), and the trial court imposed a life sentence after PFO enhancement. On appeal, Whitney’s sole claim was that the trial court abused its discretion by denying a continuance, requested during voir dire, to investigate a 2020 disciplinary report concerning the original investigating officer’s performance and credibility.

The core issues were:

• Whether the trial court abused its discretion in denying a continuance under the familiar Snodgrass/Edmonds factors.
• Whether late disclosure of a police disciplinary report—where the officer ultimately did not testify—created identifiable prejudice requiring a continuance.
• How inconvenience (particularly to minor-victim witnesses) and the lengthy pendency of the case influence continuance decisions.

Summary of the Opinion

The Supreme Court of Kentucky affirmed. Applying the abuse-of-discretion standard and the multi-factor test for continuances, the Court held:

• The request came amid a case that had already been pending nearly five years, with multiple prior continuances. An additional, indeterminate delay weighed against the motion.
• Significant inconvenience—especially to minor victims likely prepared for trial multiple times—supported denial.
• Although the defense was not at fault for prior delays and some aspects of the case were serious, the late-disclosed disciplinary report did not materially increase complexity. Crucially, the officer did not testify, the Commonwealth’s case rested primarily on victim eyewitness testimony, and the defense used the report to impeach via another officer.
• Most importantly, Whitney failed to identify any specific, articulable prejudice or exculpatory potential that a continuance would uncover. Speculative assertions that “there might be something there” were insufficient.

Distinguishing cases where last-minute disclosures clearly had exculpatory potential (Mills) or directly undercut a central witness’s credibility (Wilson), the Court concluded that denial of a continuance here was neither arbitrary nor unreasonable. The trial court’s balancing of the Snodgrass factors was within its discretion.

Analysis

Precedents Cited and Their Role

• Abuse of discretion standard:
  • Slone v. Commonwealth, 382 S.W.3d 851 (Ky. 2012).
  • Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999) (defining abuse as arbitrary, unreasonable, unfair, or unsupported by sound legal principles).
• Continuance framework:
  • RCr 9.04 (continuances; the opinion cites “RCr 89.04,” evidently a typographical error, but the rule governing continuances is RCr 9.04).
  • Snodgrass v. Commonwealth, 814 S.W.2d 579 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001) (enumerating the relevant factors).
  • Edmonds v. Commonwealth, 189 S.W.3d 558 (Ky. 2006) (reaffirming the Snodgrass factors).
  • Parker v. Commonwealth, 482 S.W.3d 394 (Ky. 2016) (continuances disfavored absent compelling reasons; treatment of late disclosures).
  • Morris v. Slappy, 461 U.S. 1 (1983) (quoted regarding the burden of assembling participants and skepticism toward continuances).
  • Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003) (death penalty case complexity distinguished).
  • Turner v. Commonwealth, 544 S.W.3d 610 (Ky. 2018) (denial of continuance affirmed in a case pending almost five years).
• Prejudice requirement and late-disclosed evidence:
  • Taylor v. Commonwealth, 611 S.W.3d 730 (Ky. 2020) (party must state with particularity how denial causes prejudice; “identifiable prejudice” is “especially important”).
  • Bartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013) (conclusory or speculative claims that more time “might” help are insufficient).
  • Parker, 482 S.W.3d at 402–03 (abuse where last-minute changes or withheld exculpatory evidence undermine ability to prepare; but no abuse where exculpatory potential is speculative and does not undermine the anticipated defense).
  • Mills v. Commonwealth, 95 S.W.3d 838 (Ky. 2003) (reversal where undisclosed eyewitness information plainly had exculpatory potential).
  • Wilson v. Commonwealth, 388 S.W.3d 127 (Ky. App. 2012) (reversal where late-disclosed police pool car logs could materially undermine central police testimony).
  • Herp v. Commonwealth, 491 S.W.3d 507 (Ky. 2016) (recognizing the reasonableness of brief continuances under some circumstances).

Collectively, these authorities set the stage: trial courts possess broad discretion; continuances require case-specific balancing; the moving party bears the burden to show particularized, identifiable prejudice; and speculative assertions—especially where the late disclosure does not materially affect the anticipated defense—will not suffice. The Court in Whitney applies these principles to facts where the impeached officer did not testify and the case rested on victim eyewitnesses.

Legal Reasoning

The Court proceeded factor-by-factor under Snodgrass/Edmonds, buttressed by the strong admonitions in Parker and Morris against unnecessary delays:

• Length of delay and prior continuances: Nearly five years elapsed from indictment (2018) to trial (August 2023), driven by pandemic-related delays, a change of counsel, and defense preparation. While not attributing blame to Whitney for earlier delays, the Court noted that multiple continuances had already occurred. Against this background, Whitney’s request—without a defined duration and with uncertain scope of investigation—cut against further delay. The Court cited Turner and Edmonds to underscore that long case pendency counsels denial absent compelling justification.
• Inconvenience: The trial court emphasized the burdens on seated jurors and, critically, on minor victims likely prepared and re-prepared due to prior postponements. The Supreme Court agreed that additional delay would significantly inconvenience and stress these witnesses. While the record lacked granular proof of juror inconvenience, the minors’ situation satisfied the “significant or substantial inconvenience” threshold recognized in Eldred and framed in Parker.
• Purposeful delay: The trial court found no purposeful delay by Whitney; the Commonwealth did not argue otherwise. This factor weighed in Whitney’s favor.
• Complexity: Whitney argued complexity based on potential life exposure, evidentiary issues, and late disclosures. The Court distinguished Eldred (a death penalty case with unique complexities) and found that, while serious, this case’s complexity was not increased in any material way by the late-disclosed disciplinary report. The Commonwealth’s case turned on live testimony from the child victims and other firsthand witnesses; the impeached officer did not testify. Defense counsel cross-examined the supervising officer (Major Dudinskie) about the original officer’s disciplinary suspension. Thus, the report did not meaningfully change the anticipated defense or the trial’s complexity.
• Availability of other counsel: Not argued; neutral.
• Identifiable prejudice: The pivotal factor. The Court stressed that identifiable, particularized prejudice is “especially important” (Taylor) and cannot rest on speculation (Bartley). Here, the disciplinary report documented lackluster follow-up by the original officer and other departmental issues, but he did not testify, and his investigative gap was remedied by Major Dudinskie, who located and re-interviewed witnesses and testified at trial. The defense used the report to impeach the investigation’s quality through Dudinskie’s testimony. Whitney did not articulate what specific exculpatory evidence a continuance would likely produce, how that evidence would alter his defense theory, or how it would undermine the Commonwealth’s witnesses. By contrast, in Mills and Wilson, the late-disclosed materials had clear or at least articulable exculpatory potential directly tied to central factual disputes or key witnesses. No similar showing was made here.

From these factors, the Court concluded that the trial court’s denial fell well within its discretion. The decision was neither arbitrary nor unsupported by legal principles; it reflected a faithful application of Snodgrass, Edmonds, and Parker, with particular emphasis on the absence of identifiable prejudice and the significant inconvenience to minor witnesses.

Impact and Practical Implications

Although unpublished, the opinion offers persuasive guidance for Kentucky courts and practitioners confronting late disclosures of impeachment material—especially involving non-testifying officers—on the eve of trial.

• Heightened emphasis on particularized prejudice: Parties seeking a continuance must specify what the investigation will entail, how long it will take, how it will yield exculpatory or impeaching evidence, and how that evidence will concretely affect defense strategy or outcome. Vague assertions (“we need time to see if there is anything there”) will not suffice.
• Centrality of the witness to be impeached: When the subject of the impeachment (e.g., a disciplinary report) will not testify, the exculpatory or impeachment value diminishes. Courts will ask whether the case turns on that person’s credibility. If not, continuance requests weaken. This contrasts with cases like Wilson, where undisclosed logs could impeach the arresting officer central to the prosecution’s case.
• Inconvenience to child witnesses as a significant factor: The opinion underscores that the stress and disruption to minor-victim witnesses following multiple delays can constitute a “significant or substantial” inconvenience weighing heavily against continuances, particularly in cases already delayed by systemic factors (e.g., pandemic).
• Indeterminate continuance requests are disfavored, especially in long-pending cases: Where the record reflects years of prior delays, courts will expect any new continuance request to be narrowly tailored in scope and duration (e.g., a defined two-day continuance as in Herp), with specific, articulable objectives.
• Distinguishing exculpatory potential: The Court’s treatment clarifies the difference between materials that have clear, material exculpatory potential (Mills) and those whose value is speculative or collateral (Parker). Defense counsel should be prepared to draw precise lines showing how the late material materially advances a defense theory or undermines a pillar of the prosecution.

For defense practitioners, the opinion suggests the following best practices when late disclosures arise:

• Proffer a concrete investigation plan (who will be interviewed, what records will be sought, and how they bear on trial issues), with a short, defined duration.
• Articulate the link between the new information and a specific defense theory or anticipated cross-examination, and explain how it could reasonably affect the verdict.
• Clarify whether the subject of the impeachment will testify; if not, show how the new information still materially affects the Commonwealth’s case.

For prosecutors, the opinion underscores:

• Prompt disclosure of disciplinary materials and clarity about which witnesses will testify can mitigate continuance risk.
• Where an officer has credibility issues, presenting the case through another officer and making impeachment fodder available can help insulate a denial of continuance from reversal.

Complex Concepts Simplified

• Abuse of discretion: An appellate court will not second-guess a trial judge’s decision unless it is arbitrary, unreasonable, unfair, or contrary to legal principles. This is a deferential standard.
• Continuance (RCr 9.04): A request to postpone trial. Courts weigh factors including length and number of prior delays, inconvenience to participants, whether the delay is purposeful, case complexity, availability of counsel, and—most importantly—whether denying the delay will cause specific prejudice to the requesting party.
• Identifiable prejudice: A concrete way in which denial of a continuance harms the defense (for example, losing access to a witness or evidence that would likely change the outcome). General hopes that more time might help are not enough.
• Exculpatory vs. impeachment evidence: Exculpatory evidence tends to show the defendant did not commit the crime. Impeachment evidence attacks a witness’s credibility. Late disclosure of either can be serious, but courts look for materiality and concrete impact on the case.
• PFO (Persistent Felony Offender): A status that enhances sentencing ranges based on prior felony convictions. Here, Whitney’s kidnapping sentence (20 years) was enhanced to life due to a second-degree PFO finding.
• Unpublished opinions (RAP 40(D)): Not binding precedent. They can be cited for consideration only when no published opinion adequately addresses the issue, and must be provided in full to the court and parties.

Conclusion

Whitney reinforces a steady throughline in Kentucky law: trial continuances are exceptional remedies that require a concrete showing of need and prejudice. Where late-disclosed impeachment material concerns a non-testifying officer and the case turns on live eyewitness testimony, a defendant must do more than speculate that time might yield useful leads. The opinion’s balancing of the Snodgrass factors—especially the weight afforded to identifiable prejudice and the substantial inconvenience to minor victims in a long-pending case—aligns with Parker, Taylor, and related precedents.

While not citable as binding authority, this decision offers persuasive guidance. Continuance requests should be specific in duration and purpose, tied to a clearly articulated defense theory, and supported by a showing that the new evidence likely affects the outcome. Absent that, Kentucky courts are apt to treat such requests—particularly in cases with repeated prior delays and vulnerable witnesses—as insufficient under the abuse-of-discretion standard.