Aaron McQuady v. Commonwealth of Kentucky

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RENDERED: JUNE 25, 2026

NOT TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0135-MR

AARON MCQUADY APPELLANT

V.

ON APPEAL FROM OHIO CIRCUIT COURT

HONORABLE TIMOTHY R. COLEMAN, JUDGE

NO. 22-CR-00050

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Aaron McQuady was convicted of murder, first-degree assault, two counts of first-degree wanton endangerment, four counts of second-degree wanton endangerment, two counts of menacing, and three counts of tampering with physical evidence. He was sentenced to imprisonment for life without the possibility of parole and now appeals his convictions and sentence as a matter of right. KY CONST. § 110(2)(B).

I. FACTS AND PROCEDURAL BACKGROUND

McQuady grew up in the Rockport area of Ohio County and was the childhood friend of brothers Mathew Wallace and Christopher Wallace. McQuady later moved to Sebree in Webster County, two counties west of Ohio County, and lost touch with Matthew and Christopher. It was undisputed that

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when the events of this case unfolded in early March 2022 McQuady had not seen or spoken to Matthew or Christopher in years.

At 5 p.m. on March 5, 2022, McQuady and his wife attended a charity event attended by several motorcycle clubs. McQuady was a prospect for the New Breed Motorcycle Club. McQuady's cousin, Neil O'Brien, was the Vice President of the club and testified that the club is primarily involved in charitable endeavors and does not engage in organized crime. He further testified that harming or killing someone is not part of the club's initiation process. McQuady drank during the event, and at some point in the evening he and his wife got into an argument. McQuady left his wife behind and peeled out in his car when leaving the parking lot. Neil, who also attended the event, was concerned about McQuady driving because he had been drinking. He called McQuady and convinced him to come back and allow McQuady's wife, who was sober, to drive them both home.

Upon arriving home, McQuady armed himself with a .40 caliber pistol and an Armalite rifle that fired .223 caliber rounds and left on a motorcycle. McQuady was in the process of purchasing the heavy, touring motorcycle from Neil. McQuady drove from his home in Sebree to the Wallaces' neighborhood in Rockport. The Wallaces are a large, tight-knit family, and several members live on the same, dead-end street. Matthew lived with his wife and children at the end of the street. A few houses up the street, Christopher lived with his wife

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Tasha Wallace and their children, H.M. and D.M.¹Matthew's and Christopher's brother Johnathan Wallace lived on the same street with his girlfriend Paige O'Brien. Paige had two children from a previous relationship, A.S. and E.S., and also shared a child in common with Johnathan: M.W. It is notable that Paige is also McQuady's cousin Neil's daughter. The Wallace Brothers' sister Molly Wallace and their mother likewise lived on the street. The Wallaces often had family gatherings and were doing so on March 5, 2022. That evening, they had a fish fry at Christopher's home. Christopher and his wife and children lived in a trailer, and approximately thirty feet in front of the trailer on the left-hand side, there was a detached, garage style metal building ("garage"). In front of both structures was a gravel driveway that stretched a short distance to the road.

Matthew's wife and children left the gathering at some point before McQuady arrived, but Matthew stayed at Christophers' along with several other family members. At 11:35 p.m., a security camera at Matthew's home captured McQuady backing down the driveway and asking Matthew's wife where he was. Although she had not seen McQuady in several years, she recognized him and knew him to be a friend of the family. She therefore told him Matthew was at Christophers'. McQuady immediately left and drove the short distance to Christophers'.

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When McQuady arrived at Christopher's home moments later, seven adults were present: Matthew, Christopher, Johnathan, Molly, Tasha, Paige, and the Wallace Siblings' uncle, Jack Sprout. Six children were also present:

Christopher's and Tasha's children, H.M. (thirteen years old) and D.M. (six years old); Johnathan's and Paige's children, A.S. (three years old), E.S. (two years old), and M.W. (newborn); and Maggie Wallace's child.²Matthew, Johnathan, Molly, and their Uncle Sprout were in the detached garage,³while Christopher, Tasha, and Paige were in the home. Security camera footage from a camera placed on the front of the home pointed toward the garage showed that H.M. and D.M. went in and out of the home intermittently, while the younger children stayed inside throughout the incident. McQuady pulled into Christopher's driveway with his rifle strapped across his back and his pistol tucked into the back of his waistband. He was agitated and began kicking some metal chairs that were set up in the garage. Christopher's son H.M. went into the house and told him that someone was outside with guns, so Christopher went out to the garage. As he was approaching the garage, he heard Matthew calmly telling McQuady to put his guns away. Matthew asked McQuady to join them, eat some food, and have a few drinks, but told him he would have to leave if he did not put the guns away. McQuady refused.

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In a further attempt to calm McQuady down, when Christopher entered the garage, he asked to see McQuady's new motorcycle. Matthew, Christopher, and McQuady all exited the garage and gathered in the driveway around it. Christopher pointed out that McQuady's guns could go into the motorcycle's saddle bags and asked him to put them away, but he again refused. Both Matthew and Christopher continued to try to get McQuady to put his guns away, and the more he refused, the more the conversation escalated into an argument. Johnathan walked up to the group around the time of this escalation. During the argument, McQuady raised the rifle and pointed it at Matthew's face. Both Matthew and Christopher swatted at the rifle's barrel in order to point it away from Matthew, and McQuady opened fire on them both. After Christopher had been struck and was lying on the ground, McQuady bent over and punched him in the face. In the chaos that followed, Paige came outside, and McQuady pointed his gun at her, Molly, and Jonathan before leaving. The home's security camera captured the foregoing events, and the footage was played several times at trial, although the quality of the video is somewhat poor.

Christopher survived the shooting, despite being struck twice in the torso and once through the hand. One projectile was later surgically removed, but the other remains lodged in his liver. He still has scar tissue on the inside of his bottom lip from being punched in the face. Matthew was struck five times, including a fatal blow to the left side of his chest, and died soon after his arrival at the hospital. Seven .40 caliber shell casings and two .223 caliber

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shell casings were recovered from Christopher's driveway. None of the rounds entered the home, but one did strike the garage.

After fleeing the scene, McQuady drove over the county line into Muhlenberg County and discarded the motorcycle in a secluded area less than five miles away from where the shootings occurred. He pushed it towards a creek in the woods next to the road until it "bottomed out" and would no longer move. He then called Neil, who lived on the outskirts of Rockport; McQuady told Neil that he had "ditched the bike" and asked him to pick him up. When Neil picked McQuady up, McQuady told him that he had gotten into an argument and "shot at the Wallace boys." Neil arranged for one of his and McQuady's cousins to meet him at a halfway point between Rockport and Sebree. While on the way, McQuady made the statement "I'm going to jail for the rest of my life"⁴and asked Neil to stop on a bridge. McQuady threw the .40 caliber pistol he used in the shooting into the river below the bridge. Neil's and McQuady's cousin then met them at the halfway point and took McQuady home.

When Neil arrived back at his home, Paige called him and told him Matthew was dead and that McQuady had shot him. Neil then called the Ohio County Sheriff's Office and gave them information about the motorcycle and McQuady's possible involvement in the shooting; he was not forthcoming at that time about aiding McQuady's flight from the scene.

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Ohio County officers contacted law enforcement in Webster County and arranged for McQuady to be arrested at his home. The Webster County officer who responded to McQuady's home was given consent to search it, but neither the rifle nor McQuady's cellphone were found. McQuady's rifle, pistol, and cellphone were never located. The officer also bagged McQuady's hands for gunshot residue testing that was later conducted⁵before taking him into custody and transporting him to the Ohio County Sheriff's Office where he was interviewed by a detective approximately five hours after the shootings occurred.

The entirety of McQuady's interview was played at trial. In it, he told the detective that he had been at an archery tournament in Hopkins County and his home that day; that he did not know who had been shot or why he was being interviewed; that he was not part of a motorcycle club, that he did not have a functioning motorcycle, that he was not in the process of buying a motorcycle from Neil, and that he did not know who Neil was; and that he did not own any guns. He denied being at the Wallaces' that evening despite the detective informing him that both video footage and several witnesses placed him there.

At trial, McQuady's defense counsel indicated during opening statements that he would be asserting an extreme emotional disturbance defense. He

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stated that the basis for that defense would be that the argument McQuady and his wife had at the charity event was due to McQuady discovering that she was having an affair with Matthew. But during trial, the defense shifted to asserting a voluntary intoxication defense. McQuady testified that he began drinking at the charity event and bought and began drinking from two bottles of liquor on the way home from that event. Two bottles of liquor were found in the motorcycle's saddle bags when it was located by law enforcement. He further asserted that he went to the Wallaces with the intentions of drinking with them, despite acknowledging that they were not expecting him at that late hour, and that he did not intend to kill Matthew or Christopher when he shot at them.

None of the members of law enforcement who interacted with McQuady on the night of the shootings believed him to be drunk, although no field sobriety test was conducted. Additionally, Molly testified that she had previously been around McQuady when he was drunk and did not believe him to be drunk that night.

After hearing the foregoing evidence, the jury found McQuady guilty of Matthew's murder and the first-degree assault of Christopher. It further found him guilty of two counts of first-degree wanton endangerment, one in relation to Molly and one in relation to Johnathan; four counts of second-degree wanton endangerment in relation to Paige, Tasha, H.M., and D.M., respectively; two counts of menacing against A.S. and E.S., respectively; and three counts of tampering with physical evidence in relation to the rifle, the handgun, and the

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motorcycle.⁶Upon finding the statutory aggravating circumstance under KRS 532.025(2)(a)3. applied, it recommended a life sentence without the possibility of parole, which the circuit court imposed.

Additional facts are discussed below as necessary.

II. ANALYSIS

McQuady raises three issues on appeal, all of which solely concern the penalty phase of his trial. First, he argues that the facts of this case did not satisfy the requirements for the aggravating circumstance provided for under KRS 532.025(2)(a)3. Second, he asserts that the instructions given to the jury regarding that aggravating circumstance were reversibly flawed. And, finally, he contends the Commonwealth committed prosecutorial misconduct during its penalty phase closing arguments.

A. The facts of this case were sufficient to allow the jury to find that the aggravating circumstance under KRS 532.025(2)(a)3. applied.

McQuady first alleges that the evidence presented was insufficient to support the jury's finding that the statutory aggravator under KRS 532.025(2)(a)3. applied. That subsection directs that

(2) In all cases of offenses for which the death penalty may be authorized, the judge shall consider, or include in his or her instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating or mitigating circumstances which may be supported by the evidence:

(a) Aggravating circumstances:

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. . .

3. The offender by his or her act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one (1) person in a public place by means of a weapon of mass destruction, weapon, or other device which would normally be hazardous to the lives of more than one

(1) person[.] If McQuady's jury had not found that this aggravating circumstance was satisfied, it could not have imposed the enhanced penalty of life without the possibility of parole. KRS 532.025(3).

McQuady acknowledges that he failed to properly preserve this issue and requests review for palpable error under RCr⁷10.26.⁸That rule directs that A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. To be considered palpable, an error must be "easily perceptible, plain, obvious, and readily noticeable." Commonwealth v. Goss, 428 S.W.3d 619, 627 (Ky. 2014) (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)). It requires the challenging party to demonstrate the "probability of a different

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result or error so fundamental as to threaten a defendant's entitlement to due process of law." Id. (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). Or, stated differently, the challenger must demonstrate that "the defect in the proceeding was shocking or jurisprudentially intolerable." Id. Certainly, a sentence premised upon a statutory aggravator being applied without sufficient proof would, by definition, be a manifest injustice. See id. Here, McQuady contends that the proof failed on two fronts. He argues that there was insufficient evidence that the shootings occurred in a "public place" and that he used a "weapon . . . which would normally be hazardous to the lives of more than one (1) person[.]" KRS 532.025(2)(a)3. We disagree with both assertions.

McQuady first contends that Christopher's driveway, the area where the shooting occurred, is not a "public place." He correctly points out that KRS Chapter 532 does not provide a definition of "public place," and further contends that the issue of what constitutes a public place is a matter of first impression in Kentucky. He therefore cites to case law from Georgia and South Carolina, two of our sister states that have nearly identical statutory aggravators.⁹However, only one of the cases he cites—State v. Locklair, 535

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S.E.2d 352 (S.C. 2000)—is factually similar to this case, and it does not support his position.¹⁰

Prior to the events at issue in Locklair, Jimmy Locklair had been in a love triangle with Tammy Bridges and her estranged husband Christopher Jones that resulted in Locklair being convicted of Jones' murder. Id. at 422. Prior to Locklair's conviction for Jones' murder, he was released on bond. Id. At that time, Bridges had decided to end her involvement with Locklair. Id. On the day Locklair murdered Bridges, he and a friend had driven to Bridges' mother's home and were sitting in a vehicle on a public street. Id. Locklair honked his horn until Bridges came out to the vehicle and thereafter pleaded with her to be in a relationship with him again. Id. When Bridges refused, he chased her through her mother's yard and shot her in the back resulting in her death. Id. On appeal, Locklair argued that the trial court erred by not granting his motion for directed verdict on the statutory aggravator under S.C. Code Ann. § 16-3-20(C)(a)(3). Id. at 427. In rejecting that argument, the Court noted in relevant part:

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[T]he statute mandates that the offender create a great risk of danger to more than one person in a "public place." This incident took place in a public place because it occurred on a public street and in [Bridges' parents'] front yard in a small mill village. There were many people in the vicinity of the incident and there were several children playing on the public street when the incident occurred.

Id. (emphasis added). McQuady's crimes occurred in a driveway that is, for all intents and purposes, similar to a front yard. The driveway led to the home's front entrance, it was mere yards away from a public road, and it did not have any impediments to entry, such as a gate. We are therefore unable to conclude that Locklair supports McQuady's argument that the statutory aggravator was not satisfied.

Moreover, while McQuady is correct that this Court has not addressed what constitutes a public place within the context of this particular statutory aggravator, we have been abundantly clear on that issue in other contexts within our criminal law jurisprudence. For example, in Quintana v. Commonwealth, which addressed the propriety and limits of law enforcement's use of the "knock and talk" procedure, this Court explained that the main entrance to a home is so widely perceived by the public as the point of access for the public engaged in legitimate business, whether it is by pollsters, persons seeking assistance, postal carriers, delivery persons, Girl Scouts selling cookies, that it amounts to common knowledge that the public may at least go up to a home's front door, if the way is not barred

. . .

Thus, certain areas such as driveways, walkways, or the front door and windows of a home frequently do not carry a reasonable expectation of privacy because they are open to plain view and are

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properly approachable by any member of the public, unless obvious steps are taken to bar the public from the door.

276 S.W.3d 753, 758 (Ky. 2008). As a further example, in Maloney v. Commonwealth, Anthony Maloney was arrested while passed out on the front porch of his residence. 489 S.W.3d 235, 237 (Ky. 2016). He later entered a conditional guilty plea to alcohol intoxication in a public place pursuant to KRS 222.202(1), which states: "A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity." Id. at 236. Unlike KRS Chapter 532, KRS Chapter 222 provides a statutory definition of "public place." Specifically, it directs that "'public place' shall have the same meaning as it does in KRS 525.010[,]" KRS 222.201, which in turn defines that term as:

a place to which the public or a substantial group of persons has access and includes but is not limited to highways, transportation facilities, schools, places of amusements, parks, places of business, playgrounds, and hallways, lobbies, and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. An act is deemed to occur in a public place if it produces its offensive or proscribed consequences in a public place.

KRS 525.010(3) (emphasis added). The Maloney Court ultimately reversed the conviction on the basis that Maloney did not commit the offense in the presence of the arresting officer, and, at the time of arrest, there was not a risk that "he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity." 489 S.W.3d at 238-40. However, the Court felt

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it necessary to address Maloney's argument that "because his front porch was within his constitutionally protected sphere of privacy, the officer's intrusion onto the porch was not authorized and, in effect, amounted to an unconstitutional search." Id. at 240. The Maloney Court noted that the definition of public place provided in KRS 525.010(3) "is not exhaustive" and further discussed that

while this Court has not explicitly stated whether a porch would be considered a public place, our previous decisions [including Quintana] make it clear that Appellant's porch was open at least to limited access by the general public, which would include inquisitive police officers.

. . .

[T]he porch in this case abutted the front door of the residence and was open to public access. The porch simply had a railing, not a gate, nor any other restriction to indicate that the space was an exclusively private area, unavailable to members of the public seeking to approach the residence for a legitimate purpose. The porch was thus open to [the arresting officer] as it was to any member of the general public.

Id. at 241-42.

Here, while we acknowledge McQuady's argument that both Quintana and Maloney are Fourth Amendment cases, we see no reason to complicate the uncomplicated by declining to apply their fundamental tenet to the statutory aggravator at issue here. That is, a "public place" simply means a place that is readily and lawfully accessible by a member of the public or law enforcement. As previously noted, the driveway where the events of this case occurred was close to, and fully open to, the public road it abutted; any member of the public

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could readily and lawfully access it. We therefore hold that the requirement of KRS 532.025(2)(a)3. that the murder occur in a public place was satisfied. McQuady next argues that the statutory aggravator was not satisfied because Matthew's murder was not carried out by means of a weapon that would normally be hazardous to the lives of more than one person. We disagree. KRS 500.080, which provides definitions that are generally applicable within the Kentucky Penal Code, defines a "deadly weapon" as "[a]ny weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged[.]" KRS 500.080(4)(b). A .40 caliber handgun and an Armalite rifle firing .223 caliber rounds are both normally capable of being hazardous to the lives of more than one person and both readily meet the definition of a "weapon." We do not discern a need to explain this commonsense conclusion.

Finally, McQuady makes an overarching argument that the application of the statutory aggravator in this case would be a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. U.S. Const. amend. VIII. He contends that the application of KRS 532.025(2)(a)3. to the facts of this case would be an overly broad interpretation that would, in turn, defeat the purpose of the aggravating circumstances statute, which is to narrow the pool of offenders that qualify for its application to only "the worst of the worst." As we have already explained, the requirements of the statute were clearly satisfied, and based upon the horrific and senseless nature of

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McQuady's crimes, we cannot conclude that a sentence of life without the possibility of parole was a violation of his Eighth Amendment rights.

B. The language of the jury instruction for the aggravating circumstance does not require reversal.

McQuady next argues that the aggravating circumstance jury instruction was reversibly flawed because it omitted the word "knowingly." Preliminarily, we note that this allegation of error appears to have been waived. On the final day of McQuady's trial, after the jury reached its verdicts in the guilt phase, the court briefly recessed to prepare the jury instructions for the penalty phase. When the proceedings resumed, the following exchange occurred between the trial court and defense counsel:

Court: Alright, [defense counsel], have you had an opportunity to review the proposed jury instructions?

Defense: Yes judge.

Court: Any objections to any of those?

Defense: No judge. Thus, McQuady reviewed the instruction with which he now takes issue and explicitly stated he had no objection to it. In Tackett v. Commonwealth, we held that a defendant's explicit statement that he had no objection to the admission of a piece of evidence rendered any argument on appeal regarding the admission of that evidence to be waived. 445 S.W.3d 20, 29 (Ky. 2014). The only distinction between this case and Tackett is that it concerns a jury instruction rather than a piece of evidence.

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Nevertheless, even if this Court were to conduct a palpable error review, as McQuady requests, there would be no basis to vacate his sentence and remand for resentencing. The instruction at issue read:

You will find an Aggravating Circumstance to the Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following: That the Defendant, by his act of murder, created a great risk of death to more than one

(1) person in a public place by means of one or more weapons hazardous to the lives of more than one person, and shall state your verdict below.

McQuady contends, and is correct, that the foregoing instruction failed to perfectly track the language of KRS 532.025(2)(a)3., which states that "[t]he offender by his or her act of murder . . . knowingly created a great risk of death to more than one (1) person . . ." (Emphasis added).

While we agree that it was error for the trial court to omit the word

"knowingly" from the aggravated circumstances instruction, we cannot conclude that the outcome in this matter would have been any different had it been included. See, e.g., Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000) ("Under [RCr 10.26], an error is reversible only if a manifest injustice has resulted from the error. That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.").

During the guilt phase of McQuady's trial, the jury was instructed on, inter alia, intentional murder and wanton murder. The instruction for intentional murder provided:

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You will find the defendant Aaron McQuady, guilty of Intentional Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about March 5, 2022[,] and before the finding of the Indictment herein, he killed Matthew Wallace by shooting him with a firearm;

AND

B. That in so doing, he caused the death of Matthew Wallace intentionally.

(Emphasis added). The jury was further provided with the following definition of intentionally: "A person acts intentionally with respect to a result or to conduct when his conscious objective is to cause that result or to engage in that conduct."

On the same evening, a few hours after finding McQuady guilty of intentional murder during the guilt phase of trial, the same jury was released to deliberate in the penalty phase. As discussed, the aggravating circumstance instruction provided in the penalty phase required the jury to find that McQuady "by his act of murder, created a great risk of death to more than one

(1) person . . ." (Emphasis added). By previously finding McQuady guilty of intentional murder, the jury demonstrated that it believed beyond a reasonable doubt that McQuady acted intentionally. If the jury believed McQuady acted intentionally, then, by definition, it also believed he acted knowingly. KRS 501.020(1) and (2) provide the respective statutory definitions for

"intentionally" and "knowingly," and the commentary that accompanies that statute explains:

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As defined in this section the first two types of culpability,

"intentionally" and "knowingly," are commonly used mental states and require little explanation. The only difference between the two that should be noted is that the latter cannot serve as the culpable mental state for an offense having a prohibited result as its essential element. Two examples of this type of offense are homicide (with death as the prohibited result) and assault (with bodily injury as the prohibited result). For offenses of this type the distinction between "intentionally" and

"knowingly" is practically non-existent and likely to result in confusion. "Knowingly," therefore, is not employed in defining this type of offense, i.e., a "result" offense.

KRS 501.020 Kentucky Crime Commission/LRC Commentary (1974) (emphasis added). There is accordingly no basis upon which we can conclude under these facts that, had the word "knowingly" been included in the instruction at issue, the jury would have imposed a lesser sentence than life without the possibility of parole.

Relying primarily¹¹on Young v. Commonwealth, 426 S.W.3d 577 (Ky. 2014), McQuady contends that the omission of the word "knowingly" requires his sentence to be vacated and remanded for re-sentencing. But, upon close inspection, Young is inapposite. In that case, this Court held that palpable error occurred because the guilt phase jury instructions failed to require the jury to find that the defendant acted intentionally. Id. at 584-87. Young was convicted of murder by complicity, first-degree robbery by complicity, and second-degree arson by complicity. Id. at 579.

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As this Court explained, "[t]he 'general rule' of accomplice liability is that it reaches only crimes that defendants intend or had a conscious objective to commit." Id. at 581. Yet the respective jury instructions regarding complicity to murder, complicity to first-degree robbery, and complicity to second-degree arson did not require the jury to find that Young acted with the intent that the result/acts at issue would occur. Id. at 584-85. Stated differently, the instructions were each missing an element of the offense. Id. at 585. As

"[c]riminal convictions must rest upon a jury determination that the defendant is guilty of each and every element of the crime with which he is charged[,]" the Court could not reach the conclusion that the error was not manifestly unjust. Id. at 585-86 (quoting Miller v. Commonwealth, 391 S.W.3d 857, 868 (Ky.

2013)).

In this case, the jury instruction error asserted has nothing to do with an instruction's failure to include an element of an offense. McQuady's conviction for murder during the guilt phase was not based upon a jury instruction that failed to require the jury to find that he acted intentionally. Rather, the assertion of error is that a penalty phase instruction failed to include the requirement that he acted knowingly after it had already found that he acted intentionally when committing the murder. Young simply does not apply, and for the reasons already provided, we cannot conclude that the error was palpable.

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C. The Commonwealth did not commit prosecutorial misconduct.

McQuady's final assertion of error is that the Commonwealth committed three separate instances of prosecutorial misconduct during its closing argument in the penalty phase. McQuady acknowledges that he did not object to any of these instances, but requests review for palpable error. "As we review for palpable error, we will reverse only if the alleged misconduct was flagrant[.]"

Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020).

Misconduct is "flagrant" if it rendered the trial fundamentally unfair. The Court weighs four factors to determine whether the improper conduct is sufficiently flagrant to require reversal, namely (1) whether the remarks tended to mislead the jury or prejudice the accused; (2) whether they were isolated or extensive;

(3) whether they were deliberately or accidentally placed before the jury; and (4) the strength of the evidence against the accused. Id. (internal quotation marks omitted).

McQuady first contends that the Commonwealth incorrectly told the jury with regard to the aggravating circumstance instruction that by finding him guilty of first-degree assault and first-degree wanton endangerment, it had already found that he put more than one person at risk of dying. McQuady alleges that the Commonwealth's argument omitted that the jury also had to find that his crimes occurred in a public place, were committed with a weapon normally hazardous to the life of more than one person, and that he acted knowingly. However, the section of the Commonwealth's statement that McQuady quotes in his brief does not include the Commonwealth's entire argument on this matter. The entirety of the argument was:

The aggravating factor in this case is something that you've really already found him guilty of. The aggravating factor is that the

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defendant, by his act of murder created a great risk of death to more than one person in a public place by means of one or more weapons hazardous to the lives of one or more person. This public place, this driveway of this family, where anybody can pull up, general public, pizza guy, girl scout delivering cookies. It's a public place right there off the road. That's where he shot and killed somebody and came very very close to killing another person. And you've already found that with the assault in the first-degree. It also put two other people at risk of dying.

. . .

I believe you've already found the aggravating factor in this case by finding him guilty of assault. By doing that you've already said he's put more than one person at risk of dying. By doing the wanton endangerment you've already found that he's put more than one person at risk of dying. The question is do you want to apply it? Is it appropriate in this case?

Thus, the Commonwealth read the elements for the statutory aggravator that the jury was required to find verbatim, and apart from the omission of the mens rea of knowing, which we have already addressed, nothing was omitted. This did not constitute misconduct.

Next, McQuady correctly points out that the Commonwealth is not permitted to allow a victim's family member to recommend a sentence to the jury. Hilton v. Commonwealth, 539 S.W.3d 1, 19 (Ky. 2018) ("[T]he trial court erred in permitting the victim and the victims' families to recommend to the jury a punishment for [the defendant]."). McQuady acknowledges that the Commonwealth did not violate this rule, but contends it "backdoored" that recommendation by making the following statement:

This is a case where a family had a nightmare on a Saturday and five days later they buried a twenty-eight year old man and a father, Matthew Wallace. And then a long journey began that ends today. Had to meet with the prosecutor shortly after his death. This trial has really always been about this moment, right now.

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And I told them that the first time I ever met with them, right after they buried their loved one. This whole case is really about the moment that I get to stand in front of the jury and tell them this man has forfeited his right to walk among us in the community ever again for what he's done.

The Commonwealth did not commit misconduct in making the foregoing statement. As noted, family members cannot recommend a sentence to a jury. See id. And a prosecutor cannot tell the jury that a victim's family has requested a particular sentence. James v. Commonwealth, 681 S.W.3d 60, 75 (Ky. 2023). However, the prosecution is free to recommend a sentence on behalf of the Commonwealth. Id. ("[T]he prosecutor could have asked for a particular sentence on behalf of the Commonwealth[.]"). The foregoing statement does just that. The Commonwealth's Attorney's statement was:

"This whole case is really about the moment that I get to stand in front of the jury and tell them this man has forfeited his right to walk among us in the community ever again[.]" The prosecutor did not assert that the family had requested that sentence, and it did not have them testify regarding the sentence they desired to see imposed.

Finally, McQuady acknowledges that the Commonwealth did not violate the prohibition on "golden rule" closing arguments. Lycans v. Commonwealth,

562 S.W.2d 303, 305 (Ky. 1978) ("[A] golden rule type of argument is one that urges the jurors collectively or singularly to place themselves or members of their families or friends in the place of the person who has been offended and to render a verdict as if they or either of them or a member of their families or friends were similarly situated."). But he nevertheless contends that it

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committed misconduct by making a comparison between the victims' family and his own by stating:

I think every one of these crimes should be considered. This is more than a murder. This is a murder that almost killed multiple people. This is a murder that happened at a place, a family gathering. My wife's family lives in Rochester and it doesn't matter what the holiday is, my kid's birthday, Labor Day, Memorial Day, Christmas, Thanksgiving, no matter what it is, at some point that day we're going to be in Rochester. To see my wife's grandparents, my kids' grandparents. We've got three family members on that road.

McQuady has cited no case law that supports his notion that the foregoing statement constituted misconduct. Even assuming arguendo that it was, the strength of the evidence against McQuady was so overwhelming we would be unable to conclude that the statement rendered the entire trial fundamentally unfair. Brafman, 612 S.W.3d at 861.

III. CONCLUSION

Based on the foregoing, we affirm. All sitting. Lambert, C.J.; Conley, and Nickell, JJ., concur. Thompson, J., concurs in result only. Goodwine, J., concurs in part and dissents in part by separate opinion which Bisig and Keller, JJ., join. THOMPSON, J., CONCURRING IN RESULT ONLY: I agree with the majority's overall result but wish to clarify, consistent with my other opinions, that because McQuady waived any objection to the jury instructions palpable error review is not available and, instead, McQuady's remedy would be to seek relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 for ineffective assistance of counsel. Establishing the aggravator was committed

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"knowingly" was a necessary element which could not be satisfied based on McQuady's previous convictions in this case, and if this flaw had not been waived, reversal would have been required.

GOODWINE, J., CONCURRING IN PART, DISSENTING IN PART: Once again, we find ourselves at a crossroads, divided over waiver, preservation, and palpable error review of jury instructions. Recurring split opinions underscore the Court's inability to agree on these important concepts. Here, I write separately to address the misguided belief that a trial court can evade its duty to instruct the jury correctly on the law by counsel's failure to object. While I agree with Parts A and C of the majority opinion, I disagree with its analysis in Part B. I find that the trial court palpably erred by omitting the word "knowingly" from the jury instruction on the aggravating circumstance. That error mandates reversal and remand for a new penalty phase. I agree that the trial court and counsel discussed the court's proposed jury instructions, and that McQuady did not object to the trial court's final version. The majority concludes this constitutes a waiver of his right to appeal the erroneous jury instructions. However, the majority's reliance on Tackett v. Commonwealth for this proposition is misplaced. 445 S.W.3d 20, 29 (Ky. 2014). The error in Tackett concerns a piece of evidence, not jury instructions. Admittedly, the majority concludes this is a distinction without a difference. I contend it is the difference. Even under our more recent jurisprudence on waiver, I cannot conclude that McQuady overtly waived his right to contest erroneous jury instructions of the law through defense counsel's general

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agreement to the jury instructions. See, e.g., Sanchez v. Commonwealth, 680 S.W.3d 911, 930 (Ky. 2023).

McQuady contends the trial court improperly instructed the jury on the aggravating circumstance because the instruction did not require the jury to find the requisite mental state. He concedes he did not preserve this issue. He neither submitted proposed jury instructions to the trial court nor objected to the final instructions on this point. He requests review for palpable error under RCr 10.26. The Commonwealth argues that McQuady waived this claim and is not entitled to review. The majority agrees with the Commonwealth but finds that, even under palpable error review, the trial court did not err. I disagree. In support of its position, the Commonwealth cites to Commonwealth v. Collins, 821 S.W.2d 488, 492 (Ky. 1991). In Collins, the defendant was convicted of cultivating marijuana with intent to sell. Id. at 490. Collins was charged under a statute which mandated, "[i]f any person knowingly and unlawfully plants, cultivates or harvests twenty-five (25) or more plants of marijuana, it shall be presumed that the plants of marijuana were planted, cultivated or harvested for the purpose of sale." Id. at 492.¹²Collins argued the trial court erroneously omitted "knowingly" from the jury instruction on the offense. Id. This Court declined to review the merits of Collins' argument because he failed to comply with RCr 9.54(2). Id.

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The facts in McQuady's case are like those of Collins. In both matters, the trial court's jury instructions contained erroneous statements of law, and neither defendant objected to the errors. The Court in Collins refused to review an issue because Collins failed to preserve his argument regarding whether the instruction was given or omitted by objecting before the court instructed the jury, as required by the version of RCr 9.54(2) in effect at the time. Id. While RCr 9.54(2) has been amended since Collins was decided, both the present version of the rule and the version in effect in 1991 state that "no party may assign as error the giving or the failure to give an instruction" without objecting before the trial court instructs the jury. This requirement pertains only to whether an instruction is given, not to its content. By contrast, in both this case and Collins, the defendants are not raising issues regarding the trial court's giving or failure to give instructions. Instead, both defendants argue the trial court omitted an essential element from an instruction. "It shall be the duty of the court to instruct the jury in writing on the law of the case[.]" RCr 9.54(1). This rule mandates that the trial court is solely responsible for ensuring jury instructions accurately state the law applicable to the case. This Court's review of unpreserved errors in the language of jury instructions is explained in Martin v. Commonwealth, 409 S.W.3d 340 (Ky. 2013).

RCr 9.54(2) places responsibility on the parties to make "their instructional preferences known to the trial judge." Id. at 345. This Court has reasoned that the rule reflects the reality "that the decision to request a specific

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instruction or to oppose the giving of a specific instruction is often a matter of individual preference and trial strategy." Id. A trial court cannot be expected to

"anticipate a party's strategic preferences and act upon them sua sponte." Id. at

346. For this reason, RCr 9.54(2) bars appellate review of what instructions the trial court gives or fails to give without preservation. However, such circumstances must be contrasted with instances in which a defendant's unpreserved argument is not regarding whether an instruction should or should not have been given but is, instead, a question of whether the court properly gave an instruction. "Once the trial judge is satisfied that it is proper to give a particular instruction, it is reasonable to expect that the instruction will be properly given." Id. When a defendant alleges a defect in each instruction, RCr 9.54(2) does not prohibit review under RCr

10.26. Id. Based on this Court's analysis in Martin, I would overrule the portion of Collins that holds that a party's failure to comply with RCr 9.54(2) bars that party from arguing on appeal that the trial court improperly instructed the jury on the law of the case.

Furthermore, this case is readily distinguishable from our longstanding precedent in Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011). In Quisenberry, the defendant requested a facilitation instruction and argued to the trial court that the evidence supported giving it. Id. at 37. On appeal, he argued the opposite. Id. This Court held that Quisenberry invited and waived any error. Id. at 37-38.

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By contrast, McQuady did not invite the error because he neither requested the instruction nor argued that the evidence supported it on the aggravating circumstances. Most importantly, unlike Quisenberry, McQuady does not argue that the instruction should not have been given. Instead, he argues that it was improperly given. This is a distinction with a difference. While a defendant can waive errors in the giving or failure to give instructions under RCr 9.54(2), he cannot waive the trial court's errors of law in the instructions it gives.

McQuady specifically claims intent is an essential element of aggravated murder and the trial court's failure to instruct on it amounts to palpable error.

"[C]riminal convictions must rest upon a jury determination that the defendant is guilty of each and every element of the crime with which he is charged."

Miller v. Commonwealth, 391 S.W.3d 857, 868 (Ky. 2013) (citation omitted). "[I]t is error to convict a defendant of a crime when the jury has not been properly instructed on the elements of the crime." Sanders v. Commonwealth, 301 S.W.3d 497, 499 (Ky. 2010) (citations omitted). "[E]rroneous jury instructions are presumed to be prejudicial[.]" Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018) (citation omitted). This Court has previously found palpable error where a specific mental state was omitted from a jury instruction in the penalty phase. See Young v. Commonwealth, 426 S.W.3d 577, 584-85 (Ky.

2014).

In Young, the defendant argued instructions on complicity to commit murder, arson in the second degree, and robbery in the first degree were fatally

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flawed because they did not require the jury to find he acted with a specific state of mind. Therein, the Commonwealth acknowledged the flaws in the instructions, but argued any error was harmless "because the evidence as a whole left no doubt of [Young's] guilt." Id. at 585. This Court rejected the Commonwealth's reasoning. Id. The jury must be "aware of and required to find the requisite mental state . . . in some way" for an instruction to be sufficient. Id. at 586 (citation omitted). We

cannot affirm in the face of an instructional error where the jury has not found that the appellant acted with a

required mental state. Unlike other elements which,

when omitted, may result in harmless error under the

specific circumstances of the case[,] [i]ntent is an

essential element and failure to instruct is prejudicial

error.

Id. (internal quotation marks and citation omitted). The complete omission of the requisite mental state for an offense from instructions amounts to a palpable error that mandates reversal. Id.

Here, to convict someone of aggravated murder, the statute requires a jury to find

[t]he offender by his or her act of murder . . . knowingly

created a great risk of death to more than one (1) person in a public place by means of a . . . weapon . . . which would normally be hazardous to the lives of more than one (1) person[.]

KRS 532.025(2)(a)(3) (emphasis added). However, during sentencing in this matter, the instruction on aggravated murder read as follows:

You will find an Aggravating Circumstance to the

Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the

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following: That the Defendant, by his act of murder, created a great risk of death to more than one (1) person in a public place by means of one or more weapons hazardous to the lives of more than one person[.] Like its argument in Young, the Commonwealth argues the erroneous jury instruction could not possibly amount to palpable error because the jury convicted McQuady of intentional murder and first-degree wanton endangerment in the guilt phase of the trial. However, the jury's prior findings do not negate its duty to decide each element of the aggravating circumstance during the penalty phase. During the guilt phase, McQuady argued for, and the jury was instructed on, intoxication as a defense. They were unconvinced by the defense but, in the penalty phase, were instructed on mitigating circumstances including the following:

[a]t the time of the offense, the capacity of the Defendant to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was

impaired as a result of mental illness or an intellectual disability or intoxication, even though the impairment

of the conduct to the requirements of law was

insufficient to constitute a defense to the crime.

While we acknowledge the strength of the evidence against McQuady, there is a probability that a different outcome would have resulted in the penalty phase had the jury understood that, to find the aggravating circumstance, McQuady had to act knowingly. See Young, 429 S.W.3d at 584 (citation omitted). The majority opinion states that during the guilt phase of McQuady's trial, the jury was instructed on intentional and wanton murder, including the definition of intentional murder, and that it found McQuady guilty of intentional murder. The majority opinion further notes that a few hours after

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finding McQuady guilty of intentional murder during the guilt phase, the same jury found him guilty of aggravated murder. The majority opinion then concludes, "by previously finding McQuady guilty of intentional murder, the jury demonstrated that it believed beyond a reasonable doubt that McQuady acted intentionally." This analysis is flawed. Yes, the jury found McQuady guilty of intentional murder beyond a reasonable doubt. That was its task during the guilt phase. During the penalty phase, that same jury was tasked with determining whether McQuady was guilty of aggravated murder beyond a reasonable doubt, based on a new set of jury instructions. The penalty phase instructions were flawed because a defendant can be found guilty of intentional murder without an aggravating circumstance. That is why it is imperative that the jury be properly instructed on all essential elements of an aggravating circumstance when aggravated murder is alleged. The existence of the elements of the aggravating circumstance cannot be assumed based upon a finding of intentional murder during the guilt phase.

Because the instruction omits the requirement to find that McQuady acted knowingly, the jury could not find an essential element of the offense. This error is "easily perceptible, plain, obvious, and readily noticeable." Id. (citation omitted). Following Young's reasoning, the trial court's failure to provide any instruction on mental state constitutes a palpable error that necessitates reversal for a new penalty phase.

Based on the foregoing, I concur in part and dissent in part. Bisig and Keller, JJ., join.

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COUNSEL FOR APPELLANT:

Roy A. Durham, II Kathleen Kallaher Schmidt Assistant Public Advocates

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky Joseph A. Beckett

Assistant Attorney General