Terrence Downs v. Commonwealth of Kentucky ( 2020 )


Menu:
  •                                               CORRECTED: NOVEMBER 12, 2020
    RENDERED: JULY 9, 2020
    TO BE PUBLISHED
    Supreme Court of Kentucky
    2018-SC-0402-MR
    TERRENCE DOWNS                                                       APPELLANT
    ON APPEAL FROM JEFFERSON CIRCUIT COURT
    V.               HONORABLE ANGELA MCCORMICK BISIG, JUDGE
    NOS. 16-CR-003370 & 18-CR-001693
    COMMONWEALTH OF KENTUCKY                                              APPELLEE
    OPINION OF THE COURT BY JUSTICE VANMETER
    REVERSING AND REMANDING
    Terrence Downs appeals as a matter of right1 from his twenty-five-year
    sentence for convictions of first-degree manslaughter, tampering with physical
    evidence, possession of a handgun by a convicted felon, and second-degree
    persistent felony offender (PFO2). Because Downs was deprived of his right to
    counsel at a critical stage of the proceedings, we reverse his convictions and
    remand for further proceedings consistent with this Opinion.
    I. FACTUAL AND PROCEDURAL BACKGROUND.
    On Saturday, December 10, 2016, Downs shot and killed Ronnie Reed
    inside the kitchen of Brandy Taul’s apartment, located in the Guardian Court
    1   Ky. Const. § 110(2)(b).
    apartment complex in Louisville. Brandy, her roommate Juanita Downs,2 and
    Juanita’s sister Jordyn Hinkle, witnessed the shooting. The shooting occurred
    shortly after Jordyn telephoned Downs, who was a good friend of hers, and told
    him that she was upset because Reed had put his hands on her in the parking
    lot of the apartment complex where Jordyn also resided. At Jordyn’s request,
    Downs drove over to her apartment to talk with her.3
    Downs believed Jordyn but having known Reed since middle school,
    wanted to talk with him about what happened. Downs and Jordyn went to
    Brandy’s apartment looking for Reed but he was not there. Downs spoke with
    the people there and tried to get a sense of what had happened. They informed
    Downs that Reed was on his way back to Brandy’s apartment. At this point,
    Jordyn called Reed, and Downs spoke with him. Reed denied putting his
    hands on Jordyn and said he was coming over.
    While they waited, Downs and Jordyn went to the store. Upon returning,
    they encountered Reed in the apartment parking lot. Downs saw Reed was
    holding a .45 handgun with an extended clip. Jordyn went upstairs to
    Brandy’s apartment while Downs and Reed remained outside. Downs testified
    that Reed denied responsibility and became frustrated and wanted to talk to
    Jordyn. Reed headed upstairs to the apartment, Downs followed. Juanita,
    who watched their encounter from a window at the landing outside the
    2   No relation to Terrence Downs.
    3 Evidently, the conflict between Reed and Jordyn arose because Jordyn learned
    that Reed was also having an intimate relationship with her sister, Juanita.
    2
    apartment, testified that Downs and Reed spoke cordially, with no indication of
    a conflict.
    In the apartment, Jordyn and Juanita were in the small kitchen, sitting
    on the countertop. Reed entered the kitchen first, with Downs behind him. At
    this point, the evidence is conflicting as to whether Reed was waving the
    handgun around with his hand on the trigger threatening people OR whether
    Reed simply set the gun on the counter and turned his back to it while civilly
    speaking with Juanita and Jordyn. Regardless, Downs grabbed the gun and
    struck Reed in the head with it from behind. Reed staggered, turned to face
    Downs, and Downs shot him. Downs then fled the scene; he testified that he
    dropped the gun in the parking lot as he ran away. Reed was taken to the
    hospital, where he died that morning. Downs was arrested two days later. The
    handgun was never found.
    A grand jury indicted Downs for murder, robbery first-degree, possession
    of a handgun by a convicted felon, wanton endangerment first-degree,
    tampering with physical evidence, and PFO2. The trial court dismissed the
    robbery first-degree and wanton endangerment first-degree counts and severed
    the handgun-possession count. After the guilt phase of trial, a jury convicted
    Downs of manslaughter first-degree and tampering with physical evidence. At
    that point, the parties agreed to the disposition of the other offenses and the
    penalty. Downs pled guilty to possession of a handgun by a convicted felon,
    being a PFO2, and to the tampering with physical evidence charge for which he
    already had been convicted. Pursuant to the parties’ agreement, Downs waived
    3
    sentencing and the trial court imposed twenty-five years’ imprisonment with
    Downs reserving his right to appeal the manslaughter first-degree conviction.
    II. ANALYSIS.
    a. Downs was denied the right to counsel at a critical stage of the
    proceedings.
    Downs claims he was denied the right to conflict-free counsel at a critical
    stage of the proceedings — during an in-chambers hearing the trial court
    conducted on the fitness and ability of his private attorney, Brendan McLeod,
    to try the case. Kentucky case law is settled that “a complete absence of
    counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment
    violation warranting reversal of a conviction, a sentence, or both, as applicable,
    without analysis for prejudice or harmless error.” Allen v. Commonwealth, 
    410 S.W.3d 125
    , 144 (Ky. 2013).
    On the afternoon voir dire was scheduled to commence, the
    Commonwealth informed the court that it had an issue to address and asked to
    approach the bench. At the bench conference, Dorislee Gilbert, an appellate
    attorney with the Jefferson County Commonwealth’s Attorney’s office, entered a
    limited appearance to report concerns about the fitness of Downs’s attorney,
    McLeod, to try the case. She told the court:
    Our point here, Judge, is not to accuse Mr. McLeod, or to say bad
    things about him. Honestly, if the things that I am hearing about
    him are true, I have concerns about him personally, but today the
    purpose of this hearing and the reason we’re putting this stuff on
    the record, is because there is a man who is facing a prison
    sentence who has a Sixth Amendment right to effective counsel,
    and we are aware of something, and as prosecutors it is our
    obligation to help secure his rights.
    4
    Gilbert informed the court that she had witnesses, including potentially
    another Jefferson Circuit Court Judge, who would testify as to their concerns
    about McLeod’s fitness to try the case. The trial judge said that Jefferson
    Circuit Court Judge Chauvin had already approached her out of court, off the
    record, expressing his observation that McLeod’s thinking sounded circular or
    disjointed during a bond arraignment hearing earlier that day, but that he did
    not plan on reporting McLeod to a lawyer agency or anything of that nature.
    The trial judge stated that in observing McLeod that day, she had not perceived
    any physical manifestation of him being under the influence of anything.
    When the court indicated that it would hear from the Commonwealth’s
    witnesses, McLeod requested that it do so in chambers.
    Downs remained in the courtroom while the attorneys retreated to
    chambers. In chambers, the court heard from two assistant Commonwealth’s
    Attorneys: Justin Janes, who had appeared in Judge Chauvin’s courtroom with
    McLeod for a bond arraignment hearing earlier that day, and Scott
    Drabenstadt, who had interacted with McLeod in the hallway that day. Janes
    said that after sitting through the arraignment, he was concerned about
    McLeod’s health and his ability to work, since McLeod did not seem like
    himself. After the arraignment, Judge Chauvin asked Janes if McLeod was
    going to try a case that day, then stated “that man should not be operating
    heavy machinery.” Drabenstadt told the court that he was friends with
    McLeod, had known him for many years and had encountered McLeod in the
    hallway earlier, and that McLeod was not himself — he was not speaking or
    walking in his usual manner — and Drabenstadt wondered if something was
    5
    neurologically wrong with him like maybe he had suffered a stroke. The trial
    court commented that it had not seen anything inappropriate from McLeod
    since starting the case. The court then questioned McLeod, inquiring as to
    whether he was under the influence of any medication, or had a health issue,
    or a personal situation affecting him that would impair his ability to adequately
    represent Downs that day. McLeod said that nothing in his personal life
    affected his ability to try the case. He further denied having a health issue or
    being under the influence of medication, other than taking Sudafed for
    postnasal drip. He told the court he was “naturally hyper” but that he had
    stopped taking Valium a month ago. He pointed to the prosecutors’ aggressive
    attitude toward Downs and confrontational proceedings as a source of agitation
    in this case. The trial court acknowledged that the case had been acrimonious.
    The Commonwealth then asked the court to make a ruling on whether
    McLeod was fit to proceed that day. The Commonwealth further requested that
    in the event the court determined he was fit to proceed, the court advise Downs
    of the general concerns raised so that he would be aware and could raise any
    observations or concerns he had with McLeod’s representation. McLeod
    protested on grounds that informing Downs of the allegations amounted to
    corroding his client.
    The trial court ruled that McLeod was fit to proceed, finding as follows:
    To take the very serious step of saying that a lawyer is not fit to
    represent his client I believe that I would need more information
    than what has been presented to me. I haven’t had anyone say
    that there’s been any smell, I haven’t seen any physical
    manifestation, like I said, I do not doubt, and I wholeheartedly
    believe these allegations are being made in good faith and are not
    being made for tactical advantage in this underlying case. I’ve been
    6
    on the bench 16 years and I’ve never had anyone raise an issue like
    this. I don’t think the Commonwealth would start today just doing
    this to gain an advantage in this case. But I just don’t see enough
    evidence to remove Mr. McLeod from representing his client.
    While noting the importance of a defendant’s right to counsel of his
    choice, the court refused to inform Downs of the issues raised and the court’s
    ruling, stating that it had observed Downs and McLeod appropriately
    interacting throughout the proceeding and that Downs had not asked the court
    to intervene, or looked to the court as though there was a problem. The court
    believed that to question Downs about McLeod’s fitness at this point would
    prejudice their relationship, which the court declined to do without more
    evidence of inappropriate behavior from McLeod. The court said that it would
    continue to monitor the situation.
    McLeod asked to break for the day because he felt upset and under
    attack. The court dismissed the jury for the night. The next morning, McLeod
    was thirty minutes late to court and the trial court reprimanded him for his
    tardiness, informing him he would be fined every time he was late going
    forward. The court then addressed Downs in open court, checking in with him
    to make sure he wished to proceed with McLeod as his counsel, and that he
    was comfortable with McLeod as his counsel. Downs responded yes, and the
    court asked him if he had any questions. Downs said, “I mean I didn’t really
    get the full extent of what was going on but he told me a little bit of it . . . I
    mean, I don’t know.” The court clarified that Downs was comfortable going
    forward with McLeod as his attorney, and that they were working together in
    his defense, and Downs said yes.
    7
    On appeal, Downs’s DPA-appointed counsel argues that Downs had the
    right to be represented by conflict-free counsel and to have been present during
    the court’s in-chambers hearing or, at the very least, should have been
    informed of the nature of the inquiry and the court’s findings. RCr4 8.28(1)
    states, in part: “The defendant shall be present at the arraignment, at every
    critical stage of the trial including the empaneling of the jury and the return of
    the verdict, and at the imposition of the sentence.” Indeed, “[i]t is well-settled
    that a criminal defendant has a right to be represented by counsel that extends
    beyond the actual trial to every critical stage of the proceedings.” 
    Allen, 410 S.W.3d at 138
    (citations omitted).
    [A]n analysis of a critical stage necessarily involves a retrospective
    inquiry as to the nature and consequences of each step in the
    proceedings. Particular attention must be given to how counsel
    would have benefited the defendant at these moments. A portion
    of a criminal proceeding is a critical stage if a reasonable likelihood
    exists that the defendant was prejudiced by the absence of
    counsel.
    Id. at 139
    (internal quotations and citations omitted).
    Downs asserts that the in-chambers hearing on McLeod’s fitness to try
    the case was a critical stage of the proceedings and that he was prejudiced by
    not having conflict-free counsel represent him. He points out that the hearing
    turned on contested facts, rather than mere legal arguments, which he
    distinguishes from situations involving only legal arguments between the court
    and counsel, or other minimal events for which the defendant’s presence
    makes no difference. See, e.g., Tamme v. Commonwealth, 
    973 S.W.2d 13
    , 38
    4   Kentucky Rules of Criminal Procedure.
    8
    (Ky. 1998) (holding that the defendant’s absence during discussion of jury
    instructions was not reversible error, as such discussion involved only legal
    arguments); Parrish v. Commonwealth, 
    472 S.W.2d 69
    , 71 (Ky. 1971) (holding
    that the defendant’s absence from a pretrial motion for a continuance was not
    reversible error).
    Downs emphasizes that no one in chambers was representing his
    interests: McLeod was acting as a fact witness for the subject matter of the
    hearing and not in his capacity as Downs’s attorney. Downs argues that
    McLeod’s objection to the court informing him of the inquiry reveals the
    inherent conflict: McLeod was seeking to preserve his attorney-client
    relationship with Downs, rather than serving as an advocate for Downs’s
    interests. In support, Downs directs us to Zapata v. Commonwealth, wherein
    this Court held on direct appeal that the defendant was deprived of his right to
    conflict-free counsel during a critical stage in the proceedings when his counsel
    was placed in the untenable position of defending her own interests which were
    adverse to her client’s. 
    516 S.W.3d 799
    , 803 (Ky. 2017). In Zapata, the
    defendant moved to withdraw his plea based on his counsel’s alleged deception.
    The defendant’s counsel admitted the motion put her in an “awkward position”
    and this Court agreed, holding that “to argue in favor of [her] client’s motion
    would require admitting serious ethical violations and possibly subject [her] to
    liability for malpractice; on the other hand, any contention by counsel that
    defendant’s allegations were not true would . . . contradict [her] client.”
    Id. (citations omitted). 9
          In response, the Commonwealth argues that the in-chambers hearing
    was a procedural conference unrelated to the issues at trial and therefore did
    not require Downs’s presence. The Commonwealth cites no Kentucky cases in
    support of its argument and instead directs us to two cases from the Tenth and
    Eleventh Circuits in which the federal courts held that the defendant’s
    presence was not required. In the first case, United States v. Oles, the Court
    ruled that the defendants had no right to be present at a pretrial hearing, held
    two weeks before the jury trial, during which prospective counsel declined to
    enter an appearance and the court thus denied the appointed counsel’s motion
    to withdraw. 
    994 F.2d 1519
    , 1525 (10th Cir. 1993). Specifically, the Oles
    court held that “the preliminary hearing was not a critical stage of trial, but
    instead would more accurately be classified as an administrative conference
    unrelated to any issues at trial. . . . appellants failed to establish that their
    presence at this hearing would contribute to the fairness of the overall
    proceeding.”
    Id. Downs distinguishes Oles
    on grounds that the pretrial
    proceeding in that case did not affect the overall fairness of the proceedings as
    it did here where the health and fitness of defense counsel was questioned as
    voir dire commenced.
    In the second case, United States v. Bowe, the Court cited Oles in
    applying the principle that procedural conferences unrelated to the issues at
    trial do not require a defendant’s presence. 
    221 F.3d 1183
    , 1189 (11th Cir.
    2000); see also Small v. Endicott, 
    998 F.2d 411
    , 414–15 (7th Cir. 1993) (holding
    that defendant had no right to attend scheduling hearing where court made no
    adverse ruling). In Bowe, an attorney on the defense team was arrested prior to
    10
    trial and entered a drug rehabilitation program.
    Id. at 1188.
    Subsequently, the
    defense attorneys requested a continuance until that attorney completed rehab,
    which the trial court denied after holding a status conference.
    Id. The appellate court
    held that the defendant had no due process right to attend the status
    conference as it was not formal, the defendant’s presence would not have
    contributed to the discussion, the defendant did not claim to have a more
    extensive knowledge of counsel’s situation than those who attended, and the
    defendant’s request for a continuance was communicated to the court through
    his attorneys.
    Id. at 1189.
      Downs distinguishes Bowe, as the unavailable
    attorney in that case was part of a defense team, i.e., the client had two other
    attorneys well-versed in the case representing him, whereas McLeod was
    Downs’s only attorney. Moreover, Downs points out that the conference in
    Bowe occurred at least a month before trial commenced, not the day of voir
    dire, and the court had record of the defendant’s wishes as expressed in an
    affidavit from Bowe explaining that he knew about the attorney’s arrest and
    rehabilitation and wanted a continuance so that attorney could remain part of
    his defense team. Unlike the defendant in Bowe, Downs had no notice of the
    concerns raised about McLeod’s fitness to try the case, and his acquiescence to
    McLeod’s continued representation of him was made without this available
    information.
    As this Court has noted, what constitutes a “critical stage” for Sixth
    Amendment purposes includes those circumstances in which “the accused
    must find himself confronted, just as at trial, by the procedural system, or by
    his expert adversary, or by both.” Cain v. Abramson, 
    220 S.W.3d 276
    , 280 (Ky.
    11
    2007) (internal quotations and citations omitted). In Cain, we held that “the
    psychiatric evaluation, ordered by the court upon notice by Cain of his intent
    to assert mental illness as a defense to the crimes he is charged with
    committing, is not a ‘critical stage’ in the procedural system giving rise to a
    constitutional necessity for the presence of counsel.”
    Id. at 281.
    We reasoned
    that our holding “balance[ed] the constitutional rights of the accused to have
    counsel present at ‘critical stages’ of the procedural system and to be free from
    compulsion to incriminate himself with the right of the public to refute
    disingenuous or inadequate claims of mental disease.”
    Id. at 282.
    Here, the trial court’s in-chambers hearing failed to include the person
    most affected by the issues raised — Downs — who was on trial for murder.
    Whether Downs had a fit attorney representing him at trial is of utmost
    importance to the fairness of his trial. While Downs himself was not placed in
    an adversarial situation without counsel, he was excluded from participating in
    the procedural system during a fact-based inquiry that bore directly on his
    counsel’s physical and mental ability to represent him competently and
    effectively. At the very least, Downs should have been informed of the
    allegations against McLeod and given the opportunity to retain independent
    counsel to advocate his interests.
    Put simply, Downs’s right to conflict-free counsel outweighed McLeod’s
    desire to keep his attorney-client relationship intact and outweighed any
    potential inconveniences suffered by delaying the trial to conduct a proper
    hearing on the issues raised. While we commend the trial court’s effort to
    investigate the Commonwealth’s concerns in a confidential and professional
    12
    manner, the court’s decision not to inform Downs of the Commonwealth’s
    allegations against McLeod and not offer him the opportunity to retain
    independent counsel to represent his interests was error of constitutional
    magnitude and his manslaughter conviction must be reversed. In addition,
    Downs’ guilty pleas for possession of a handgun by a convicted felon, being a
    PFO2, and tampering with physical evidence were entered after the guilt phase
    of his trial, i.e. after he was denied counsel at a critical stage of the proceedings
    against him. Because the entry of a guilty plea is a critical stage of the
    proceedings, we reverse those convictions as well.
    We will now address any remaining claims of error that may arise again
    on remand.
    b. First-Degree Manslaughter Instruction.
    Downs asserts that the first-degree manslaughter instruction
    erroneously required the jury to find that he was acting under extreme
    emotional disturbance (EED). As this claim of error is unpreserved, it is
    subject to palpable error review only pursuant to RCr 10.26:
    A palpable error which affects the substantial rights of a party may
    be considered . . . 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.
    “Palpable error relief is available under RCr 10.26 only upon a determination
    that manifest injustice has resulted from the error. ‘Manifest injustice’ is ‘error
    [that] so seriously affect[s] the fairness, integrity, or public reputation of the
    proceeding as to be ‘shocking or jurisprudentially intolerable.’” Davidson v.
    Commonwealth, 
    548 S.W.3d 255
    , 261 (Ky. 2018) (quoting Miller v.
    13
    Commonwealth, 
    283 S.W.3d 690
    , 695 (Ky. 2009)).
    The trial court instructed the jury on first-degree manslaughter as
    follows:
    Manslaughter in the First Degree
    If you did not find the Defendant guilty under Instruction 1
    [Murder], you will find the Defendant, Terrence Downs, guilty of
    Manslaughter in the First Degree under this Instruction if, and
    only if, you believe from the evidence beyond a reasonable doubt,
    all of the following:
    (A) That in Jefferson County on or about December 10, 2016, he killed
    Reed by shooting him; AND
    (B) That in so doing:
    (1)   He intended to cause the death of Ronnie Reed while acting
    under the influence of an extreme emotional disturbance as
    defined in Instruction No. 6; OR
    (2)   He did not intend to kill Ronnie Reed but intended to cause
    serious physical injury to Ronnie Reed; AND
    (C) That he was not privileged to act in self-protection, as set out in
    Instruction 1A.
    The Commonwealth concedes that this instruction should not have
    required a finding that Downs acted under EED, but argues the error was not
    palpable. As we are reversing and remanding on other grounds, we need not
    address whether the error was palpable, but do direct the trial court on remand
    not to include EED as a requisite finding under this instruction unless the
    evidence supports such an instruction.
    c. Provocation and Initial Aggressor Qualifying Instructions.
    Downs argues that the trial court erred by providing the provocation
    and initial aggressor qualifying instructions as they were not supported by the
    14
    evidence. Downs objected to the inclusion of these instructions that the
    Commonwealth tendered during trial. The trial court noted his objection and
    said it would make a final ruling once all the proof was submitted. However,
    Downs did not renew his objection the next day and the trial court included
    these qualifying instructions that rendered the defense of self-protection
    unavailable if Downs provoked Reed or if Downs was the initial aggressor.
    We review the trial court’s decision to provide a jury instruction under an
    abuse of discretion standard:
    Under the familiar standard prescribed in Commonwealth v.
    English, 
    993 S.W.2d 941
    , 945 (Ky. 1999), a trial court abuses its
    discretion when its decision is arbitrary, unreasonable, unfair, or
    unsupported by sound legal principles. A decision to give or to
    decline to give a particular jury instruction inherently requires
    complete familiarity with the factual and evidentiary subtleties of
    the case that are best understood by the judge overseeing the trial
    from the bench in the courtroom. Because such decisions are
    necessarily based upon the evidence presented at the trial, the trial
    judge’s superior view of that evidence warrants a measure of
    deference from appellate courts that is reflected in the abuse of
    discretion standard.
    Sargent v. Shaffer, 
    467 S.W.3d 198
    , 203 (Ky. 2015) (internal quotations and
    citations omitted).
    The provocation and initial aggressor instructions immediately followed
    the self-protection instruction and read:
    Provocation Qualification
    Provided, however, that if you believe from the evidence beyond a
    reasonable doubt that Terrence Downs provoked Ronnie Reed to
    use or attempt to use physical force upon him, then the defense of
    self-protection is not available to him.
    Initial Aggressor Qualification
    15
    Provided, however, that if you believe from the evidence beyond a
    reasonable doubt that Terrence Downs was the initial aggressor,
    the defense of self-protection is not available to him unless:
    (a) He did not initially intend to cause death or serious physical
    injury to Ronnie Reed and his initial physical force was not such
    that he thereby created and knew he was creating a substantial
    risk of death or serious physical injury to Ronnie Reed; AND
    (b) The force returned or threatened by Ronnie Reed was such
    that Terrence Downs believed himself to be in imminent danger of
    death or serious physical injury.
    The language in the trial court’s initial aggressor instruction follows the
    wording of KRS5 503.060, which in relevant part sets out exceptions to
    selfdefense:
    (3) The defendant was the initial aggressor, except that his
    use of physical force upon the other person under this
    circumstance is justifiable when:
    (a) His initial physical force was nondeadly and the
    force returned by the other is such that he believes himself
    to be in imminent danger of death or serious physical injury
    In applying KRS 503.060 to jury instructions concerning the right to use
    deadly physical force, we have made clear that there must be sufficient
    evidence in the record to substantiate the instruction:
    The criterion is whether movant, in good faith, believed it was
    necessary to exercise extreme force in saving his own life. It is not
    every assertion of such belief that is adequate to support a plea of
    self-defense. It is the whole circumstances which surround the
    incident that must be considered by the trial judge in deciding
    whether an instruction on self-defense is proper or whether an
    instruction on self-defense with limitations is proper. We have
    held that before such qualifying instructions are proper there must
    of course be evidence to justify it. In other words, the trial judge
    must find as a matter of law that there is sufficient evidence to
    justify such limitations before instructing the jury.
    5   Kentucky Revised Statutes.
    16
    Stepp v. Commonwealth, 
    608 S.W.2d 371
    , 374 (Ky. 1980).
    Downs argues that his initial request for Reed to come talk to him was
    insufficient to warrant the qualifying instructions and that Reed bringing a gun
    to the conversation was a “show of force” that precluded a finding that Downs
    provoked Reed or was the initial aggressor. However, Downs’s and Reed’s
    interaction was not limited to the parking lot; they also interacted in the
    apartment afterwards. Notably, the witnesses’ testimony at trial was conflicting
    as to whether Reed brandished his gun when he entered Brandy’s apartment,
    waving it around and pointing it at Downs, or whether he set the gun on the
    counter without making any threats and turned his back to it when Downs hit
    him from behind.
    This evidence, while conflicting, supported the trial court’s decision to
    instruct the jury on provocation and initial aggressor. The jury was charged
    with weighing conflicting evidence, assessing the credibility of the witnesses,
    and drawing a conclusion in the form of a verdict. Clark v. Commonwealth, 
    567 S.W.3d 565
    , 569–70 (Ky. 2019). The jury could have reasonably determined
    that Downs provoked Reed, or was the initial aggressor, when he picked up the
    gun and pistol-whipped Reed while Reed had his back to him. Therefore, the
    trial court did not abuse its discretion by instructing the jury on provocation
    and initial aggressor qualifications to self-defense.
    d. Language of Provocation Instruction.
    Regarding the wording of the provocation instruction, Downs admits he
    did not preserve this issue for review and thus argues that the trial court
    17
    committed palpable error by instructing the jury on provocation without
    including intent, a necessary element of the instruction. The Commonwealth
    acknowledges that the instruction was erroneous in that “it lack[ed] the
    statutory element requiring the defendant to provoke the victim with the intent
    to cause death or serious physical injury to him.” Barker v. Commonwealth, 
    341 S.W.3d 112
    , 114 (Ky. 2011); see also 1 Cooper & Cetrulo, Kentucky Instructions
    to Juries, § 11.12 (2018) (includes statutory element of intent to cause death or
    serious physical injury).
    Review of jury instructions is a question of law, which we review de novo.
    Maupin v. Tankersley, 
    540 S.W.3d 357
    , 359 (Ky. 2018); Sargent v. 
    Shaffer, 467 S.W.3d at 204
    . Erroneous instructions are presumed to be prejudicial.
    McKinney v. Heisel, 
    947 S.W.2d 32
    , 35 (Ky. 1997).
    KRS 503.060(2), which addresses improper use of force in self-protection,
    provides in part: “Notwithstanding the provisions of KRS 503.050,6 the use of
    physical force by a defendant upon another person is not justifiable when: (2)
    The defendant, with the intention of causing death or serious physical
    injury to the other person, provokes the use of physical force by such other
    person[.]” (emphasis added). Downs claims that the jury should have been
    instructed to find that he intended to cause the death or serious physical injury
    to Reed when he provoked Reed to use force against him. Downs is correct and
    on remand, the trial court shall include the necessary element of intent if the
    evidence supports an instruction on provocation.
    6 KRS 503.050 provides for self-defense: “Use of physical force in self-
    protection.”
    18
    e. Downs Waived His Right to Appeal the Tampering with Physical
    Evidence Conviction.
    Downs argues that the evidence was insufficient to support the
    tampering with physical evidence conviction. After the jury convicted him of
    first-degree manslaughter and tampering with physical evidence, Downs pled
    guilty to possession of a handgun by a convicted felon, PFO2, and tampering
    with physical evidence. Pursuant to the plea agreement, Downs reserved his
    right to appeal only the first-degree manslaughter conviction. Because he
    waived the right to appeal his conviction for tampering with physical evidence,
    we decline to review this claim of error. See Commonwealth v. Reed, 
    374 S.W.3d 298
    , 300 (Ky. 2012) (“[a]n unconditional guilty plea waives the right to
    appeal . . . a finding of guilt on the sufficiency of the evidence”).
    f. Jordyn Hinkle’s Prior Inconsistent Statement.
    Downs asserts that the trial court improperly allowed the Commonwealth
    to introduce a recorded phone call that occurred between Brandy and Jordyn
    nine days after the murder through the testimony of Brandy, rather than
    Jordyn. Because Downs did not present an evidentiary rule or basis for his
    objection below, just that “it’s wrong, it’s not allowed,” the Commonwealth
    argues that this issue is unpreserved and should be reviewed for palpable error
    only.
    KRE7 103(a)(1) provides for an appeal on admission of evidence only if a
    timely objection was made at trial, and only when such objection “state[s] the
    specific ground for objection, if the specific ground was not apparent from the
    7   Kentucky Rules of Evidence.
    19
    context[.]” (emphasis added). While Downs timely objected to the recording
    coming in through Brandy, the record is void of any specific ground for his
    objection. That said, because the ground for objection was apparent from the
    context of counsel’s discussion at the bench (that the recorded phone call
    should have been played when Jordyn denied it took place), we will consider
    the issue preserved and review whether the trial court abused its discretion by
    admitting the recording through Brandy. Goodyear Tire & Rubber Co. v.
    Thompson, 
    11 S.W.3d 575
    , 577 (Ky. 2000) (an appellate court reviews a trial
    court’s evidentiary rulings for an abuse of discretion).
    The record shows that the Commonwealth questioned Jordyn about
    whether she spoke on the phone with Brandy nine days after the murder, on
    December 19, 2016. Jordyn denied the phone conversation occurred and said,
    “if it was recorded, I’d like to hear it.” Later, the Commonwealth recalled
    Brandy who testified that she had recorded the phone call with Jordyn on that
    day at a detective’s request and that the recording was an accurate
    representation of their conversation. The recording was played for the jury.
    During the recording, two female voices (Brandy and Jordyn) discuss threats
    being made against them because of Reed’s murder. The female voice
    identified as Jordyn stated that Downs and Reed had “squashed it in the
    parking lot” and that when Reed and Downs came up to the apartment, Reed
    was being nice to her when, suddenly, Downs shot him — and that it was
    Downs’s fault.
    The Commonwealth maintains that it properly recalled Brandy for the
    sole purpose of introducing a prior inconsistent statement of Jordyn, since
    20
    Jordyn testified inconsistent with that recording by denying ever speaking to
    Brandy on the phone on December 19, 2016. The Commonwealth points out
    that the recorded phone call was in discovery so Downs was aware of its
    content.
    Downs directs this Court to KRE 613 in support of his assertion that the
    Commonwealth should have played the recording after Jordyn testified — “if it
    was recorded, I’d like to hear it” — and allowed Jordyn the opportunity to refresh
    her recollection and explain herself. KRE 613 provides:
    Examining witness concerning prior statement. Before other
    evidence can be offered of the witness having made at another time
    a different statement, he must be inquired of concerning it, with
    the circumstances of time, place, and persons present, as correctly
    as the examining party can present them; and, if it be in writing, it
    must be shown to the witness, with opportunity to explain it. The
    court may allow such evidence to be introduced when it is
    impossible to comply with this rule because of the absence at the
    trial or hearing of the witness sought to be contradicted, and when
    the court finds that the impeaching party has acted in good faith.
    KRE 613(a).
    The Commonwealth contends that Downs conflates KRE 613(a)’s
    foundation requirement for introduction of a prior inconsistent statement with
    memory refreshment under KRE 612 and with the KRE 803(a) hearsay
    exception for introduction of a recorded recollection concerning a matter about
    which the witness once had knowledge. Under KRE 801A(a)(1), relating to prior
    statements of witnesses, “[a] statement is not excluded by the hearsay rule,
    even though the declarant is available as a witness, if the declarant testifies at
    the trial or hearing and is examined concerning the statement, with a
    foundation laid as required by KRE 613, and the statement is . . .
    21
    [i]nconsistent with the declarant’s testimony[.]” An inconsistent statement for
    purposes of KRE 801A(a)(1) includes a witness’s claimed inability to recall
    making the statement. McAtee v. Commonwealth, 
    413 S.W.3d 608
    , 618 (Ky.
    2013). And under Kentucky law, “prior inconsistent statements may be
    introduced as an impeachment device and as substantive evidence.”
    Id. Here, the Commonwealth
    established a foundation through Jordyn’s
    testimony, then applied KRE 801A(a)(1) and KRE 613 in introducing her prior
    statements by way of playing the recorded phone call. The recorded phone call
    was sufficiently authenticated for its introduction into evidence by Brandy’s
    identification of it as a phone call between her and Jordyn on December 19,
    2016 and representation that the recording was an accurate reproduction of
    their conversation. Because Brandy authenticated the recording, it was
    properly admitted as a prior inconsistent statement of Jordyn pursuant to KRE
    801A(a)(1). The Commonwealth need not have refreshed Jordyn’s recollection
    with it first. See King v. Commonwealth, 
    554 S.W.3d 343
    , 360 (Ky. 2018) (“KRE
    613 requires a written statement be shown to the witness; it does not address a
    recorded statement[]”). Thus, the trial court did not abuse its discretion by
    allowing the Commonwealth to introduce the recorded phone call through
    Brandy. That said, given that Jordyn now knows of the recorded phone call,
    we doubt this issue will arise again on remand.
    III.   CONCLUSION.
    Because Downs was deprived of his right to counsel at a critical stage
    of the proceedings, we reverse his judgment of convictions and
    22
    corresponding sentences and remand this case to the trial court for further
    proceedings consistent with this Opinion.
    All sitting. All concur.
    COUNSEL FOR APPELLANT:
    Molly Mattingly
    Assistant Public Advocate
    Department of Public Advocacy
    COUNSEL FOR APPELLEE:
    Daniel Jay Cameron
    Attorney General of Kentucky
    James Daryl Havey
    Assistant Attorney General
    Todd Dryden Ferguson
    Assistant Attorney General
    23
    24