Tyler Austin Jordan v. Commonwealth of Kentucky

majority opinion

RENDERED: SEPTEMBER 24, 2026

TO BE PUBLISHED

Supreme Court of Kentucky

2025-SC-0115-MR

TYLER AUSTIN JORDAN APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT

V. HONORABLE KIMBERLY N. BUNNELL, JUDGE

NO. 21-CR-01207

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE BISIG

AFFIRMING

This matter involves a jury trial in Fayette County in which Tyler Austin

Jordan (“Jordan”) was convicted of one count of first-degree arson and five

counts of first-degree wanton endangerment. Jordan received a total sentence

of twenty-five years’ imprisonment and appeals to this Court as a matter of

right. Ky. Const. § 110(2)(B). The primary issue on appeal is the admission of

Jordan’s statement from a recorded phone conversation via a detective’s

testimony and whether it was properly disclosed by the Commonwealth. While

this Court ultimately finds there was a discovery violation regarding the call, it

did not rise to the level to reverse the considered decision of a jury of twelve

citizens after a multi-day trial. In the context of an alleged discovery violation,

the Court is mindful that a mistrial is an extreme remedy and should only be used when there appears in the record manifest necessity. Cardine v.

Commonwealth, 283 S.W.3d 641, 647 (Ky. 2009) (citing Woodard v.

Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004)). Here, the trial court engaged

in just such an analysis and found ample evidence supporting the jury’s

decision. The trial court determined no substantial probability that the

outcome of the trial would be different if the evidence were disclosed. The

appellant therefore failed to show that the trial court abused its broad

discretion in making this decision, and we accordingly affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Jordan lived at an apartment complex in Lexington, Kentucky.

The Pine Brook Apartments consisted of four-plex units adjoined to other fourplex units which were all divided by brick fire walls that protruded above an

attic space. There was a breezeway contained in the middle of the apartment

units with wooden stairs leading to the entrances on the second floor. In

September of 2021, Jordan lived in the bottom right apartment of the four-plex

while Mr. Jeremy Richart and his girlfriend, Rachelle Lawson, lived diagonally

above Jordan in the top-left apartment. In addition, A.R., Jeremy’s minor

child, lived with Jeremy and Rachelle part-time in the apartment. On

September 2, 2021, A.R. was staying in the apartment along with Jeremy’s

aunt, Sherri Richart, and her friend, Monique Blackston. The guests were

staying in the apartment in Lexington to participate in the Bluegrass Classic

Dog Show Cluster that was taking place at the Kentucky Horse Park. Sherri

and Monique were in a guest bedroom along with their dogs in a crate, while

A.R. slept in the living room with three additional dogs. The other residents of

this particular four-plex directly above and next to Jordan were away the night

of the fire.

Later that evening, A.R. was awakened by one of the dogs barking, and

she saw smoke and flames around the door to the outside and alerted the

others staying in the apartment. Jeremy opened the exterior door to discover a

wall of flames on the other side. A.R. called 911, and the occupants of the

apartment rushed to the balcony on the other side. Eventually, A.R. jumped

from the balcony and landed on a concrete pad below, inside a fenced-in patio.

She broke an ankle and fractured her tibia on impact. Next, Jeremy lowered

Rachelle, Monique, and two of the dogs down to A.R. Sherri crawled back into

the apartment to get two dogs from the crate in the living room. Jeremy

jumped off the balcony. Sherri lowered the dogs and then jumped herself.

Sherri was severely injured and couldn’t stand after her exit. There was

burning debris all around. Sherri suffered second-degree and third-degree

burns.

Importantly, the Lexington Fire Department responded within four

minutes of A.R.’s 911 call. Police Officer Drew Chism followed a firetruck from

a local engine company into the apartment complex, with a third firetruck

following closely behind him. At the time both the police and fire departments

arrived on the scene, Jordan was standing on a patch of grass near the

apartments. He was barefoot, wearing pajamas, and was close enough to the

asphalt to be in the way of the firetrucks responding. Officer Chism assisted

the victims in moving away from the burning building. He helped A.R. to stand

and passed her to Jeremy. The firefighters learned that Sherri continued to be

trapped on the patio, and they shielded her from falling embers and spraying

water. Officer Chism picked up a chainsaw and used it to cut out a section

from the patio wall in order to extract Sherri.

While paramedics examined A.R. for injuries, she saw Jordan watching

the fire and smiling. Jeremy also stated that he observed Jordan watching the

fire while laughing and smiling (or smirking). Jordan continued to stand by the

apartment’s tennis courts and was smiling when Officer Chism approached

him for questioning. Officer Chism’s body camera recorded the encounter with

Jordan. He continued to be barefoot in his pajama pants and hoodie

sweatshirt. During the encounter, Jordan was focused on the fire and

uncooperative. He did not answer basic questions or identify himself. He can

be seen repeatedly turning Officer Chism’s questions back on him. Jordan

stared at the fire continuously. Jordan told Officer Chism that he liked fires.

When Officer Chism asked Jordan if he had called 911 in response to the fire,

Jordan responded, “Why would I?”

Captain James Greer of the Lexington Fire Department’s Fire

Investigation Bureau next came over to speak to Jordan. Jordan also refused

to cooperate with Captain Greer. Greer informed Jordan that his behavior was

suspicious because he was laughing at the situation. Jordan again refused to

provide his name or place of residence, and in fact walked away from Captain

Greer and Officer Chism.

Both officers eventually caught back up to Jordan. He continued to

ignore questions about his name and place of residence and watched the fire.

He was defiant in keeping his hands in his pockets. He refused the directive to

remove them as well, and the officers struggled and wrestled with Jordan until

he was taken to the ground and detained. Other firefighters on the scene

disclosed that Jordan stood in the way of the firetruck as it arrived on scene

and actually prevented them from accessing some of their equipment by

standing very close to the truck. Based upon this information, Officer Chism

told Jordan he was being charged with obstructing governmental operations

and explained that if he continued to refuse to provide identifying information,

he would be taken to jail.

After detaining Jordan, the officers around him continued to attempt to

get his identifying information. Jordan complained that Officer Chism had

assaulted him and that he wanted to press charges. Officer Chism explained

that he would still need to give his name in order to do so. Upon transporting

Jordan to a patrol car, it was found he was carrying a mobile phone, a pocket

knife, and a lighter in his pocket. Ultimately, the officers were able to identify

Jordan after a bystander gave them information about Jordan’s car and where

it was parked in the apartment complex.

The Lexington Fire Investigation Bureau came on scene and investigated

the origin and cause of the fire. Battalion Chief Chris Burke determined the

fire was not accidental and had three points of origin: 1) the front door of

Jordan’s living room; 2) the base of Jordan’s sofa; and 3) the bottom of the

staircase in the common breezeway. In addition, in the unburnt portions of

Jordan’s apartment, Chief Burke discovered a handwritten note on the top of

the dresser which read: “God can not save you, he’s way up in the sky, I’m

right here leaning over your body[.] So when I say you die, you die.” The note

was accompanied by a sketch of a human figure standing on a cloud with text

that read “have a safe trip.” Chief Burke was unable to interview Jordan at the

jail as he remained unresponsive. Chief Burke also obtained and listened to a

recorded phone call Jordan made from the jail to an unidentified woman in

which he admitted to being inside the apartment asleep when the fire started.

This testimony is the crux of the dispute here.

Jordan was indicted in Fayette County on charges of first-degree arson

and first-degree wanton endangerment. Following his jury trial, he was found

guilty of the offenses and sentenced to a total of twenty-five years’

imprisonment in accordance with the jury’s recommendation. The current

appeal followed. At trial, the jury learned that the occupants of the other

apartment were injured by the fire or escaping from it. A.R. suffered a split

tibia and part of her ankle was shattered. Monique’s forehead and arm were

cut, and she was treated for smoke inhalation. Jeremy suffered minimal

injuries. Sherri suffered second- and third-degree burns, a compound fracture

of her left femur, and a crushed right ankle. Jordan did not testify at trial and

called no witnesses.

During cross-examination, Chief Burke testified that at the time of the

fire he did not know whether Jordan was present in his apartment. However,

upon further cross-examination, Chief Burke responded that he did know and

had listened to a phone call in which Jordan places himself in the apartment at

the time of the fire. Jordan objected to this testimony, arguing the

Commonwealth failed to disclose the phone call statement in discovery.

The trial court paused the trial to conduct a hearing outside the presence

of the jury. Chief Burke disclosed that the phone call at issue was provided to

the Commonwealth on a CD. The trial court listened to the arguments, further

testimony from Chief Burke, and reviewed the pertinent portion of the phone

call. After its review, the trial court denied the motion for an admonishment to

the jury to disregard the testimony, stating:

it is not fair to the defense to say, “disregard what you heard the

witness say,” because that precludes [defense counsel] from

saying “we were not in the apartment.” Ok, now clearly, there is

substantial evidence that he [was] outside the apartment along

with others. So, in terms of him saying, “well I was not even

there,” meaning on the premises, that’s not even an argument.

He’s there.

And so, if I say an admonition, “don’t mention it, disregard it,” I

mean to you [counsel], don’t mention again and disregard it to the

jury, I just think it makes it a farce of what everybody knows, I am

very hesitant, I am more in the category of me making the

decision . . . that it is potentially harmless error because you have

him already at the premises. And this is one step further, him

being in the apartment and leaving to escape being injured by the

fire. And if we act like that didn’t exist, I just think it is a farce.

The trial court further explained:

You [defense counsel] need to be giving some thought as to what

your closing argument would be. So, and there is similar evidence,

I mean, your position can still be there’s no evidence that he set

the fire, and that’s why I am going with harmless error in terms of

him being put in the apartment.

The trial court then permitted the parties an opportunity to negotiate an

agreement regarding the charges. When they were unable to come to a

resolution, Jordan next requested a mistrial, which the trial court denied,

stating:

I have been giving some great thought as to whether or not I would

grant that motion. I am exceptionally unhappy with the way this

has progressed. I am not sure exactly how it happened. . . .

But I do believe it could . . . potentially be viewed by the higher

court, if he is in fact convicted, as harmless, and so therefore, I am

going to overrule your motion for a mistrial.

Jordan continued his argument to which the court responded:

I am still sticking with, I don’t believe an admonishment is going to

be sufficient because it precludes the defense from, I just don’t

think you could potentially say “we weren’t there” and yet we have

the defendant’s statement saying “I was there and I had to get out

because of the fire” and so it is going to be up to you all to decide

how you want to proceed, so I have made my ruling.

After the above dialogue, the trial court denied Jordan’s motion for a

mistrial.

ANALYSIS

I. The Court finds a discovery violation occurred in this case.

The record reflects that the Commonwealth was unable to establish with

any level of certainty that they turned the CD with the phone call at issue over

to Jordan. Chief Burke disclosed that the phone call was provided to the

Commonwealth on a CD. The prosecuting attorney had various levels of

certainty that she had turned these over to Jordan’s lawyer. The

Commonwealth denied any discovery violations, arguing it had provided the

defense with a thumb drive containing everything Chief Burke had provided.

The Commonwealth further argued that they were not planning to use the

recording as evidence at trial. Despite this, the Commonwealth was unable to

produce copies of the flash drive or other media. While “the Commonwealth

cannot claim ignorance in order to avoid an RCr 7.24(1) violation,” this Court’s

refusal to excuse an unintentional discovery violation does not relieve a

defendant from the burden of demonstrating sufficient resulting prejudice to

justify reversal. Trigg v. Commonwealth, 460 S.W.3d 322, 326 (Ky. 2015).

Defense counsel properly objected at the time of the testimony, and the

trial court held a separate hearing and considered the arguments and

circumstances of the call. Jordan argues the information contained in the call

and resulting testimony at trial impacted a portion of counsel’s trial strategy.

In support, counsel argued in opening statements that no one could say

whether Jordan was in the apartment at the time the fire started. Jordan

further explains that this information about his location at the time the fire

began is not otherwise present in the trial testimony, absent the introduction of

the call. We do not allow surprise testimony in trial. The pretrial discovery

process exists to ensure evidence is disclosed so that defendants can strategize

regarding the presentation of proof. Rule of Criminal Procedure (“RCr”)

7.24(1)(a) outlines the scope of discovery in criminal proceedings and requires,

upon written request by the defense, that the attorney for the Commonwealth

enclose the substance of any oral incriminating statement to have been made

by the defendant. Inadvertence is not controlling. Because of the

Commonwealth’s inability to concretely establish they turned over the call, the

Court holds there was a discovery violation.

II. The violation was harmless error given the totality of evidence and

the lack of substantial possibility the outcome would be different.

The mere existence of a violation does not end the inquiry. A discovery

violation that occurs during a jury trial should be thoroughly evaluated as to

whether there is a reasonable probability that the result would have been

different if the evidence was disclosed. Stieritz v. Commonwealth, 671 S.W.3d

353, 368 (Ky. 2023). The granting of a mistrial is an extreme remedy and

should only be used when the record establishes manifest necessity. Cardine,

283 S.W.3d at 647. A trial court possesses “broad remedial powers” to address

discovery violations. Akers v. Commonwealth, 172 S.W.3d 414, 417 (Ky. 2005).

A discovery violation is only prejudicial error when the violation is a surprise

attack on defense counsel’s “entire defense strategy.” Stieritz, 671 S.W.3d at

368.

From the information outlined herein, the violation was unintentional

and concerned a factual situation about which there was a large amount of

circumstantial evidence introduced at trial. As noted by the trial judge in her

ruling, ample evidence at trial supported that Jordan was on scene at the

apartments at the time of the fire. In fact, overwhelming evidence showed he

was by the concrete pad and the tennis courts, watching and smiling, as the

fire burned. Close in time to the incident, witnesses at the apartments

observed that Jordan was standing in the way of the fire truck upon its arrival

on scene. The trucks arrived within 4 minutes of the call. Multiple witnesses

testified to his presence at the scene to the jury. Both A.R. and Jeremy

testified that they saw Jordan barefoot and in his pajamas, watching the fire.

Officer Chism observed him in the immediate area of the fire. James Greer

from the Lexington Fire Investigation Bureau saw Jordan there observing the

fire. Jordan’s physical reaction to the fire was a key factor in drawing attention

to him as a possible suspect. Finally, the jury would be able to observe

Jordan’s attire and presence at the scene in officer body camera footage. In

sum, there was much information that would place Jordan already at the scene

of the fire the evening it happened.

Notwithstanding this analysis, the Court is also mindful that the root

reason for RCr 7.24(1)(a) is not to inform the defendant that he made the

statement at issue, but rather to inform defense counsel in order to plan a

strategy around information obtained by the prosecutor in mounting a defense.

Grant v. Commonwealth, 244 S.W.3d 39, 43 (Ky. 2008) (footnote omitted). The

law further states that the Commonwealth should not be permitted to mount “a

surprise attack on an unsuspecting defense counsel’s entire defense strategy”

through the withholding of discovery by “oversight[] or otherwise[.]” Trigg, 460

S.W.3d at 327 (quoting Chestnut v. Commonwealth, 250 S.W.3d 288, 296 (Ky.

2008)). Without fair notice as required under RCr 7.24(1)(a), the defendant

may find himself confronted with a claim that he made incriminating remarks

and be forced to cobble together a response. Id. at 328.

These strategy concerns are mitigated by the facts in this case. First,

defendant Jordan did not testify. Therefore, the statement from the call did not

contradict any testimony given at trial. Jordan’s defense can be characterized

as one of “reasonable doubt” that there was sufficient evidence that Jordan

started the fire. As previously stated, the witness testimony placed Jordan in

the vicinity of the fire at the time it occurred. The investigation regarding the

origins of the blaze by Chief Burke established the fire began in Jordan’s living

room at the base of his sofa, and at the bottom of the staircase leading to the

breezeway. The jury viewed the foreboding note left in his apartment. Jordan

being barefoot and in his pajamas outside the precise location of the fire within

four minutes as the fire truck arrived is certainly circumstantial evidence of his

presence at the time of the fire. Without any mention of the phone call, the

argument that he was not at the scene is already seriously undermined by

other evidence. This one statement in testimony cannot be found to have

undermined the defense’s entire strategy of the case. Considering this

information, we find the trial court acted well within its discretion to determine

the additional information in the phone call would not have substantially

changed the outcome of the trial.

We pause to address two cases Appellant argues are controlling. In both

cases, trial verdicts were reversed based upon surprise evidence not provided

in discovery. In Grant, the Commonwealth introduced a recorded phone call in

which the defendant acknowledged he delivered drugs to a property in direct

contradiction to defendant’s testimony on the witness stand. 244 S.W.3d at

42. In Chestnut, the defendant gave an alibi that he was at a Waffle House and

away from the scene of a burglary, and police presented an undisclosed

statement of his that he was immediately outside the homes at the time of the

burglary. 250 S.W.3d at 295. The distinction in both precedents is the

surprise evidence was in direct contradiction to the accused’s own testimony at

trial. This is clearly more significant from a credibility and ultimate outcome

analysis than the vague nature of the phone call at issue here. Nothing in this

evidence is of a similar nature to Grant and Chestnut. Arguably, the evidence

indicating Jordan was asleep at the time the fire started could be seen to

benefit his position in the case. His assertion that he awoke to a fire could lead

a juror to conclude he was not responsible for the fire.

In addition to the discovery violation argument, Jordan briefly argues for

the first time that the failure to turn over the statement was a violation of the

Fourteenth Amendment to the United States Constitution and Brady v.

Maryland, 373 U.S. 83 (1963). He posits that the statement could be viewed as

favorable to his case by establishing he did not intentionally start a fire

because he was asleep. This issue was not preserved at trial as he then argued

a discovery violation under RCr 7.24. Furthermore, the trial court did not have

the opportunity to engage in an analysis as to whether the statement was

favorable or impeaching because the court did not have this issue presented.

In Mills v. Commonwealth, 718 S.W.3d 577, 585 (Ky. 2025), we articulated the

proper test trial courts should apply for tardy mid-trial disclosures of evidence.

In the instance of an alleged Brady violation, the trial court should examine

whether the evidence is favorable to the defense. Id. Here, we are talking

about a self-serving statement of the defendant himself. Thus, the instinctive

response is there is no shocking revelation that occurred at trial when the

witness referenced Jordan’s own statement he was in his apartment when the

fire started. The customary remedy would be a continuation with an

opportunity to analyze the new information. Id. at 586. At the appellate level,

courts apply the “retrospective” test which focuses on the reasonable

probability of a different outcome. Id. at 587. For the reasons previously

stated, the Court finds no such probability in this case.

In sum, as previously stated, “[t]he power to grant a mistrial ought to be

used sparingly and only with the utmost caution, under urgent circumstances,

and for very plain and obvious causes.” Roberts v. Commonwealth, 599 S.W.3d

841, 853 (Ky. 2020) (quoting Commonwealth v. Padgett, 563 S.W.3d 639, 646

(Ky. 2018)). The record here reflects the trial court weighed its options fully

and considered the appropriate standard. We acknowledge the jury’s question

about the phone call clearly indicates that the jury paid attention to the

information. The jury’s specific query does not change the analysis. Primarily

because of the other evidence presented, but also the jury question could easily

have been as a result of the trial court breaking to entertain argument on the

issue and the jury wondering whether that information must be disregarded.

Having previously determined the additional information in the call was

harmless error, the trial court denied Appellant’s request to answer the jury’s

question in the negative.

The decision about whether this evidence warranted a mistrial was

clearly within the trial court’s discretion. Hammond v. Commonwealth, 504

S.W.3d 44, 51 (Ky. 2016). This discretion should be exercised to declare a

mistrial only if there is an urgent and manifest necessity considering the

totality of the circumstances in the case. Id. We are reminded the well-settled

test for an abuse of discretion is whether the decision of the trial court is

“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

Roberts, 599 S.W.3d at 852 (quoting Goodyear Tire & Rubber Co. v. Thompson,

11 S.W.3d 575, 581 (Ky. 2000)). Here, the trial court clearly made findings

that the mistake that occurred in the disclosure process made it “exceptionally

unhappy,” but solidly found that any review by a higher court would find any

error harmless. The judge also reasonably determined that giving an

admonishment placed undue emphasis on the information.

It is clear from the record that the trial court considered various

remedies including admonishment or mistrial, and while considering all the

possibilities, finally determined it was harmless error. RCr 7.24(11) specifically

allows a trial court to impose sanctions as may be just for discovery violations.

Our law gives the trial court broad discretion in addressing any discovery

violations and determining the appropriate course of action. Wilson v.

Commonwealth, 381 S.W.3d 180, 191 (Ky. 2012).

In conclusion, there was ample evidence of guilt presented in this case to

support the jury’s verdict. The trial court acted within its broad discretion to

address discovery violations. For these reasons, we affirm.

All sitting. Lambert, C.J.; Conley, Goodwine, and Keller, JJ., concur.

Nickell, J., dissents by separate opinion which Thompson, J., joins.

NICKELL, J., DISSENTING: Because I am convinced our precedents

governing the Commonwealth’s failure to timely disclose a defendant’s

incriminating statement compel reversal for a new trial in the present matter, I

respectfully dissent.

Upon a defendant’s written request, RCr 7.24(1)(a) mandates that

the Commonwealth shall disclose the substance, including time,

date, and place, of any oral incriminating statement known by the

attorney for the Commonwealth to have been made by a defendant

to any witness, and to permit the defendant to inspect and copy or

photograph any relevant (a) written or recorded statements or

confessions made by the defendant, or copies thereof, that are

known by the attorney for the Commonwealth to be in the

possession, custody, or control of the Commonwealth[.]

(Emphasis added). “The reason for the rule is not to inform the accused that

he made the statement, but rather to inform the defense, in order to plan its

defense strategy, whether the prosecutor has knowledge of statements of a

defendant that it may introduce or use to impeach.” Grant v. Commonwealth,

244 S.W.3d 39, 43 (Ky. 2008) (footnote omitted). In other words, “RCr 7.24

does not require that the defense rely only on its own information as to the

existence of witness statements, but places the burden on other parties to

disclose what is in their possession.” Id.

The Commonwealth’s failure to timely disclose a defendant’s

incriminating statement results in two forms of apparent prejudice to the

defense. Trigg v. Commonwealth, 460 S.W.3d 322, 327 (Ky. 2015). First, the

prosecution should not be permitted to mount “a surprise attack on an

unsuspecting defense counsel’s entire defense strategy” through the

withholding of discovery by “oversight[] or otherwise[.]” Id. (quoting Chestnut v.

Commonwealth, 250 S.W.3d 288, 296 (Ky. 2008)). Second, “[w]ithout the fair

notice required under RCr 7.24(1), the accused individual who is suddenly

confronted with the claim that he made incriminating remarks must cobble

together a make-shift response or allow the testimony to go unchallenged.” Id.

at 328. In either circumstance, the discovery violation unfairly impedes the

defendant’s “ability to prepare and present a proper defense and to effectively

challenge the accuracy of the testimony through cross-examination.” Id.

Although a trial court possesses “broad remedial powers” to address

discovery violations, Akers v. Commonwealth, 172 S.W.3d 414, 417 (Ky. 2005),

we have consistently

held that “a discovery violation serves as sufficient justification for

setting aside a conviction when there is a reasonable probability that

if the evidence were disclosed the result would have been different.”

Chestnut[, 250 S.W.3d] at 297. Additionally, we have held that

when an undisclosed statement makes it doubtful that defense

counsel would have proceeded in the same manner at trial, then

reversal is required. Id. at 298; Akers[], 172 S.W.3d [at] 417-18 []).

Furthermore, “absent the protections of RCr 7.24(1), there is nothing

to curb the errant prosecutor who may strategically violate the rule

in an attempt to surprise a defendant with an undisclosed

statement.” Chestnut at 298.

Trigg, 460 S.W.3d at 328 (emphasis added).

In the present appeal, Jordan’s reasonable doubt defense explicitly

focused on the insufficiency of the evidence to place him at the location of the

fire at the time it started. For example, at the outset of Jordan’s opening

statement, he told the jury:

Based on . . . questions we have asked you before and issues that

have been raised, I guess you probably weren’t surprised the

Commonwealth chose to talk about dogs and people trapped in an

apartment. What they didn’t say is, they intend or expect there to

be proof as to what caused the fire. We do not expect there to be a

single witness who will say that they know whether or not Tyler

Jordan was in the apartment or on the landing or anywhere at the

time the fire started. No witness is going to place him there at the time

the fire started.

(Emphasis added). Jordan continued to emphasize this point throughout his

cross-examination of the Commonwealth’s witnesses, and the jury specifically

questioned the trial court about its ability to use this evidence. I have no

doubt defense counsel would have proceeded in a different manner at trial had

he been properly apprised of the prosecution’s knowledge of Jordan’s

statement. Thus, the Commonwealth’s failure to comply with RCr 7.24(1)

compels reversal under Trigg, 460 S.W.3d at 328; Chestnut, 250 S.W.3d at 298;

Grant, 244 S.W.3d at 43.

The majority disregards the discovery violation as harmless based on: (1)

the strength of the overall evidence of guilt; (2) distinguishing Grant and

Chestnut. Neither of these propositions withstand scrutiny.

First, by focusing on the strength of the Commonwealth’s evidence

against Jordan, the majority sidesteps the appropriate inquiry under our

precedents, which simply asks whether “defense counsel would have proceeded

in the same manner at trial” but for the non-disclosure of the defendant’s

incriminating statement. Trigg, 460 S.W.3d at 328. This mode of analysis is

essentially a restatement of “[t]he traditional appellate standard for determining

prejudice for discovery violations [which] involves a two-pronged analysis: (1)

did the nondisclosure surprise the defendant on a material fact, and (2) did it

hamper the preparation and presentation of the defendant’s case.” 22A C.J.S.

Criminal Procedure & Rights of Accused § 460 (2026). The harm of a discovery

violation, as opposed to the erroneous admission of known and properly

disclosed evidence, is the element of unfair surprise and the attendant

prejudicial impact on defense counsel’s ability to effectively prepare and

present a defense. Wayne R. LaFave, et al., 5 Crim. Proc. § 20.6(b) (4th ed.

2025); 22A C.J.S. Criminal Procedure & Rights of Accused § 460 (“[W]hen

undisclosed evidence is used against [a criminal defendant], basic unfairness

results which constitutes reversible error.”). Thus, the prejudicial impact of the

discovery violation as it relates to the ultimate issue of guilt or innocence is not

the dispositive issue. LaFave, 5 Crim. Proc. § 20.6(b); 22A C.J.S. Criminal

Procedure & Rights of Accused § 460.

Second, the majority points to the fact that the undisclosed statements

in Grant and Chestnut contradicted the defendants’ testimony at trial while

Jordan did not testify in the present appeal. 1 The majority also characterizes

Jordan’s statement as “[a]rguably” beneficial to his case at trial. Based on my

reading of the applicable law, I cannot agree with the majority that our

precedents in Grant and Chestnut are meaningfully distinguishable from the

instant matter.

1 Notably, we applied the reasoning of Grant and Chestnut in Trigg despite the

defendant’s decision not to testify. Trigg, 460 S.W.3d at 328.

In Grant, this Court made clear that the harm of a discovery violation

results from the unavailability of “[s]uch information [that] is vital to a

professional decision with respect to [the] defense.” 244 S.W.3d at 43

(emphasis added). While “an informed decision as to proper strategy”

necessarily includes the decision to testify, id., the scope of a defendant’s

strategy also encompasses the defense’s ability to fairly and adequately present

its version of the facts through the examination of witnesses and the argument

of counsel. See Washington v. Texas, 388 U.S. 14, 20 (1967). In my view,

Jordan’s decision not to testify does nothing to mitigate the prejudicial impact

of the discovery violation, which refuted his counsel’s framing of the defense

theory to the jury and the manner by which the Commonwealth’s witnesses

were questioned on the subject of Jordan’s whereabouts at the time the fire

started.

In addition, I cannot conclude the impact of Jordan’s undisclosed

statement was anything but inculpatory despite his claim to have been asleep

at the time the fire started in his apartment. An inculpatory statement not

only includes those declarations “that would in themselves support a

conviction under a . . . criminal statute but likewise embraces those which

would furnish a link in the chain of evidence needed to prosecute the claimant

for a . . . crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951). Here,

Jordan’s statement was clearly inculpatory as it placed him directly at the

origin of the fire at the time it had started, rather than the mere vicinity as he

had previously claimed. Indeed, just as “the jury may well have felt hostility

toward a defendant they perceived as having . . . lied to them from the witness

stand[,]” Grant, 244 S.W.3d at 43-44, I am likewise convinced the jury here

may have equally felt hostility toward a defendant like Jordan whose lawyer

they perceived as having lied to them from the courtroom lectern.

Our precedents mandate reversal when “nondisclosure rendered defense

counsel unable to make a well-informed decision about the most appropriate

defense strategy, and there is a reasonable probability that defense counsel

would not have pursued the same theory had he been apprised of [the

defendant’s] alleged statement. Trigg, 460 S.W.3d at 328. Because Jordan was

“suddenly confronted with the claim that he made incriminating remarks” and

his counsel was unfairly left with the option to “cobble together a make-shift

response or allow the testimony to go unchallenged[,]” id. at 327, I cannot

conclude the discovery violation was harmless in this matter. Therefore, I

respectfully dissent and would remand for a new trial.

Thompson, J, joins.

COUNSEL FOR APPELLANT:

Steven J. Buck

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Shawn D. Chapman

Assistant Solicitor General

Tyler Austin Jordan v. Commonwealth of Kentucky

Authorities cited

Opinion · public domain