“Physically Impossible Threats” and the Objective Prong of Protection-of-Another – A Commentary on Jones v. Commonwealth (Ky. 2025)

1. Introduction

In Dazzamon R. Jones v. Commonwealth of Kentucky, the Supreme Court of Kentucky affirmed a life-sentence murder conviction, issuing an unpublished opinion that nonetheless provides an unusually detailed exposition on four discrete areas of Kentucky criminal and evidentiary law:

The circumstances under which a trial court must instruct a jury on the statutory defense of “protection of another” (KRS 503.070(2));
The limits of impeachment under KRE 806 when the first “statement” is admitted for a non-hearsay purpose;
Application of the Confrontation Clause to recorded statements of non-testifying codefendants or participants;
Technical but harmless errors in admitting victim-impact testimony from non-enumerated witnesses, and propriety of prosecutorial comments during penalty argument.

Although “not to be published” and therefore non-precedential under RAP 40(D), the opinion is likely to be cited for persuasive value when no published authority squarely controls, particularly in self-defense/protection-of-another cases, and in evidentiary disputes involving KRE 806.

2. Summary of the Judgment

The Court unanimously upheld the Kenton Circuit Court’s refusal to instruct on protection-of-another, its evidentiary rulings (while labeling some “error” but “harmless”), and the prosecutor’s closing argument. Key holdings:

No Instruction on Protection-of-Another: Even viewing the evidence in the light most favorable to Jones, a reasonable juror could not conclude that the third person (Brian Gray) faced an imminent threat of deadly force. Because Lopez sat unarmed in a stationary car pointed away from Gray, the threat was “physically impossible” and failed the objective requirement of KRS 503.070(2)(b).
KRE 806 Misapplied: Gray’s out-of-court statement (“Lopez is trying to kill me”) was admitted solely to show Jones’s state of mind; it was therefore not hearsay. Because KRE 806 only allows impeachment of hearsay declarants, admitting Gray’s later police interview was error—and also violated the Confrontation Clause—but harmless beyond a reasonable doubt.
Victim-Impact Witness: Allowing the decedent’s live-in girlfriend (not a statutory relation under KRS 421.500) to give sentencing-phase testimony was “technical” error but harmless.
Closing Argument: The prosecutor’s deterrence language did not amount to a forbidden “send a message” plea because it did not shame jurors or invoke community retribution.

3. Analysis

3.1 Precedents Cited

Sutton v. Commonwealth, 627 S.W.3d 836 (Ky. 2021) – reiterates abuse-of-discretion standard in formulating instructions.
Springfield v. Commonwealth, 410 S.W.3d 589 (Ky. 2013) – case law governing when evidence is sufficient to require a defense instruction.
Springer v. Commonwealth, 998 S.W.2d 439 (Ky. 1999) – previously distinguished the subjective and objective elements of protection-of-another.
Mishler v. Commonwealth, 556 S.W.2d 676 (Ky. 1977) – famous “believe the unbelievable” instruction rule; Court distinguishes by invoking “physical impossibility.”
Luna v. Commonwealth, 460 S.W.3d 851 (Ky. 2015) – clarifies non-hearsay use of statements for state-of-mind purposes.
Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006) – binding Confrontation Clause framework.
Cantrell v. Commonwealth, 288 S.W.3d 291 (Ky. 2009) – scope of permissible deterrence arguments in sentencing.
Ross v. Commonwealth, 531 S.W.3d 471 (Ky. 2017) – courts may disregard testimony contrary to laws of nature.

3.2 Legal Reasoning

3.2.1 Protection-of-Another (KRS 503.070(2))

The statute sets a two-pronged test:

Subjective belief – defendant must believe deadly force is necessary;
Objective justification – the person defended must actually have been entitled to use deadly force.

The Court accepted that Jones’s subjective belief could, in theory, be inferred from his testimony. Yet, it found the objective element unsatisfied as a matter of law because:

Lopez was seated, unarmed, in a car facing away from Gray behind a cinderblock wall;
Any vehicular assault would require a multi-step, time-consuming maneuver — not “about to occur at any moment.”

Invoking Ross, the Court said juries need not accept “physically impossible” scenarios. Hence, no reasonable juror could find imminence, so the instruction was properly refused.

3.2.2 KRE 806 & Confrontation Clause

The opinion sharply curtails prosecutors’ reliance on KRE 806 for “impeaching” statements that were never admitted for their truth. The Court’s syllogism is straightforward:

Rule 806 only reaches hearsay declarants.
Jones proffered Gray’s statement to show state of mind (non-hearsay).
Because the first statement was non-hearsay, 806 does not apply; introducing testimonial police-interview clips violated both hearsay rules and the Sixth Amendment.

Despite identifying constitutional error, the Court employed the Chapman harmless-beyond-a-reasonable-doubt test, finding no “reasonable possibility” the error affected the outcome because the statements bore no weight on the legal issues in dispute.

3.2.3 Victim Impact & Prosecutorial Argument

On sentencing, the technical statutory violation (live-in partner not enumerated) was forgiven as harmless where the witness had a relationship akin to a statutory one and gave expected, restrained testimony. For the closing argument, the Court reaffirmed that prosecutors may:

Discuss punishment, public protection, deterrence;
Describe evidence or anticipate community reaction to that evidence.

They may not shame jurors or threaten community condemnation. The Court found no such misconduct.

3.3 Potential Impact

Although unpublished, the opinion’s detailed treatment makes it a likely “go-to” citation in three recurring trial scenarios:

Self-Defense / Defense-of-Another Instructions: Trial judges now have an explicit green light to refuse instructions where the threat would require defiance of “physical laws.” Expect more summary denials where cameras or forensic mapping show the alleged danger was not imminent.
KRE 806 Limitations: Litigants often assume any out-of-court statement opens the door to impeachment. Jones clarifies that only “truth-purpose” hearsay does so, protecting defendants who offer statements for mental state or “effect on listener.”
Harmless Error Framework: The opinion models tandem application of Kentucky’s “fair assurance” test for non-constitutional error and Chapman for constitutional error—useful for trial courts preserving records and for appellate lawyers framing arguments.

4. Complex Concepts Simplified

Protection of Another (KRS 503.070): Think of it as “self-defense squared.” The defender must believe force is needed, and the person being defended must be legally entitled to use that same level of force.
Imminence: Under Kentucky law, the danger must be “about to happen right now”—not minutes or even seconds away if intervening physical actions are required.
Hearsay vs. Non-Hearsay: A statement is hearsay only if offered to prove the literal truth of what it says. If offered for another reason (e.g., to show what the listener believed), it is not hearsay.
KRE 806: Allows attacks on credibility of a declarant only when the original statement was hearsay. No hearsay = no 806 impeachment.
Confrontation Clause: Bars admitting “testimonial” out-of-court statements unless the declarant is unavailable and previously cross-examined.
Harmless Error: Non-constitutional: Did the mistake substantially sway the verdict?
Constitutional: Is there any reasonable doubt the error affected the verdict?

5. Conclusion

The Supreme Court of Kentucky’s decision in Jones delivers an important, if unpublished, roadmap for trial judges and practitioners. It tightens the “objective reasonableness” analysis for protection-of-another, sets a bright-line check on using KRE 806, and demonstrates the layered harmless-error approach when both evidentiary and constitutional issues intertwine. Though Jones remains incarcerated for life, the legal echoes of his appeal are poised to influence Kentucky trial practice—particularly where imaginative defense theories collide with the immutable laws of physics.