Note: This is a “Not to Be Published” opinion under Kentucky RAP 40(D). It is not binding precedent but may be cited for consideration under RAP 41 if no published opinion adequately addresses the point of law.
Background
On May 18, 2022, Morehead police responded to a report of a possible domestic altercation involving a white Cadillac at a Dairy Queen parking lot. Officer Smith stopped the vehicle after observing erratic driving and conducted a welfare check. The driver, Rebecca Reis, told Officer Smith that “the dope isn’t mine” and informed him that a large quantity of drugs in the car belonged to her husband, George Reis, who was a passenger. A search of the vehicle yielded over 100 grams of a fentanyl, cocaine, and tramadol mixture; approximately 50 grams of methamphetamine; dozens of prescription pills; three scales; glass pipes; plastic straws; multiple cell phones; and nearly $3,000 cash in Reis’s wallet.
Reis was indicted and, before trial, wrote a letter claiming ownership of all the drugs and other evidence. At trial, his defense was that he possessed the drugs solely for personal use to manage chronic pain following a severe car accident. The jury rejected that defense and convicted Reis of possession of drug paraphernalia, first-degree possession of a controlled substance, two counts of first-degree trafficking in a controlled substance, and being a first-degree persistent felony offender. The Rowan Circuit Court sentenced him to twenty-five years’ imprisonment in accordance with the jury’s recommendation.
Reis appealed as a matter of right under Kentucky Constitution § 110(2)(b), raising five claims: (1) the trial court erred in refusing to strike three jurors for cause; (2) testimony that he had active arrest warrants was improper KRE 404(b) evidence; (3) Officer Smith’s recounting of statements made by others constituted inadmissible hearsay; (4) the Commonwealth committed prosecutorial misconduct during closing argument; and (5) the cumulative effect of these errors warranted reversal.
The Court’s Holding
The Kentucky Supreme Court affirmed on all grounds. On the juror-strike issue, the court held that Reis failed to preserve the error under the strict procedural requirements of Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019), because he listed five jurors as “lost strikes for cause” when he had only actually moved to strike three for cause — inflating his would-be peremptory list beyond what the rule permits. Reviewing for palpable error, the court found none: each challenged juror had either affirmed impartiality through extensive questioning or demonstrated sufficient passage of time since their personal drug-related trauma (six years, one and a half years, and four years, respectively) to support the trial court’s finding that they could render a fair verdict.
On the warrant testimony, the court held that Trooper Thomas’s single, unexplained reference to Reis having “some active warrants” was admissible under KRE 404(b)(2) as evidence inextricably intertwined with the circumstances of the arrest. The warrants explained why officers removed Reis from the vehicle and conducted the search that uncovered the drugs, giving the jury the necessary context under Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013). Even assuming error, the court found no palpable prejudice given the overwhelming evidence — including Reis’s own written confession of ownership.
On hearsay, the court held that Officer Smith’s account of the 911 dispatch call and the parties’ statements about looking for their IDs were not offered for the truth of the matter asserted but to explain police action — a recognized exception under Kentucky law. Statements by Rebecca Reis identifying the drugs as George’s were not timely objected to and did not rise to palpable error given Reis’s own ownership letter. Where Reis’s objection was sustained (Smith relaying what other officers told him Reis said), the court found no error because Reis never requested a jury admonishment and the trial court had no duty to admonish sua sponte.
Key Takeaways
- Under Floyd v. Neal, the number of “would-be peremptory” jurors identified on a strike sheet must precisely match the number of jurors actually moved to strike for cause — listing more inflates peremptory entitlement, renders the issue unpreserved, and will not be saved by showing that some identified jurors still ended up on the panel.
- Brief, unexplained references to a defendant’s outstanding arrest warrants are admissible under KRE 404(b)(2) when the warrants are the reason officers removed the defendant from a vehicle and conducted the search underlying the charges — they provide essential context, not improper character evidence.
- A police officer’s testimony recounting out-of-court statements is not hearsay when offered solely to explain investigative action taken in response to those statements, not to prove the truth of the statements themselves.
- Where a trial court sustains a hearsay objection, the defendant must affirmatively request a jury admonishment to preserve any further error; the court has no obligation to admonish on its own initiative.
- A defendant’s own pretrial written confession of ownership to the charged drugs significantly undercuts palpable-error arguments on evidentiary issues that go to ownership or attribution of the contraband.
Why It Matters
For defense practitioners, this decision reinforces how technically unforgiving Kentucky’s Floyd v. Neal framework is for preserving juror-cause challenges. Listing even one extra “would-be peremptory” juror — however reasonable the arithmetic logic may seem — forfeits appellate review and leaves counsel to the steep palpable-error standard. In high-stakes drug cases where jurors with drug-trauma histories are common, careful compliance with Floyd‘s exact-match rule is essential.
For prosecutors and law enforcement witnesses, the decision confirms that a brief, contextual reference to outstanding warrants — where warrants triggered the arrest sequence — survives KRE 404(b) scrutiny without elaborate foundation, provided the witness does not elaborate on the nature of the underlying offenses. The opinion also reaffirms that investigative hearsay explaining police action remains a durable and broadly applied doctrine in Kentucky courts.