NOT TO BE PUBLISHED

OPINION

CAPERTON, Judge.

The Appellant, Boss Saylor, appeals the June 14, 2013, judgment and sentence on plea of not guilty following a jury trial convicting Saylor of attempted murder and tampering with physical evidence, and sentencing him to ten years in prison. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.

Saylor was charged with, and indicted for, attempted murder, assault first-degree, and tampering with physical evidence for the shooting of Selvia "Clifford" Napier on September 19, 2012. The charges stemmed from an incident in which Saylor shot Napier three times with a .38-caliber revolver at close range. The shooting took place in the parking area of Piney Flats Baptist Church at approximately 10 a.m. Saylor and Napier knew each other prior to the shooting; a dispute over an alleged insult by Napier to Saylor may have been the catalyst for the shooting on that date. Following the shooting, Saylor called the Kentucky State Police ("KSP") to report that someone was screaming. The .38-caliber revolver used in the shooting was not surrendered or recovered that day, and Saylor gave a statement to Detective Kenny Abner of the KSP denying that he had shot Napier. A search warrant was issued for Saylor's residence and vehicle on that date; neither the revolver used in the shooting nor any incriminating evidence was collected from those locations.

There were a total of three pretrial conferences leading up to the initial trial date, which was continued. On April 25, 2013, the trial court addressed a number of pretrial motions tendered by Saylor's defense, including a motion to suppress his statement, a motion for the court to direct the jury to visit the scene of the crime prior to the commencement of trial, and a motion to depose. After hearing arguments from both sides, the trial court held that the statements made by Saylor after he stated, "I think I need a lawyer," were not admissible. The trial court denied Saylor's motion for a jury visit to the crime scene, finding that both the Commonwealth and Saylor intended to introduce photographs of the scene taken from both ground level and an aerial perspective. Concerning the motion for deposition, Saylor tendered an agreed order for the deposition of Dr. Jose Echeverria, to which the Commonwealth did not object but did state on the record that it might make a motion in limine with regard to the introduction of the deposition at trial depending on what the doctor testified to during the deposition.

The parties returned on May 14, 2013, for a trial on the matter. Following the selection of the jury, the trial court addressed the issue of the deposition of Dr. Echeverria. Having reviewed a transcript of the deposition prior to the hearing and having listened to the parties arguments, the trial court found that on the basis of the transcript, Dr. Echeverria had not had contact with Saylor since 1999, nor was there any evidence that Dr. Echeverria had reviewed any medical records generated after 2005 with reference to the treatment or nontreatment of Saylor's alleged heart condition. The trial court then denied Saylor's motion to introduce the deposition during his case-in-chief based on those findings of fact.

Following the hearing the trial proceeded and the Commonwealth called three witnesses — KSP Sergeant Kenny Abner; the victim; and his wife, Pam Napier. Saylor asserted self-defense and called eight witnesses of his own, including four KSP officers, the Sheriff of Harlan County, a firearms expert, and two lay witnesses. He also testified on his own behalf, during which he admitted to shooting Napier and to hiding the revolver which he used to do so. The Commonwealth then called a corrections officer in rebuttal. After the close of proof in the case, the parties gave closing arguments and the jury was sent to deliberate.

Following two hours of deliberations, the court received a question note from the jury. The question received from the jury was read into the record by the trial court while both parties were present and Saylor was in the courtroom. The question given to the court was as follows:

After consulting with both counsel and having their agreement on the record, the trial court responded to the question as follows:

The response was signed and dated by the trial court and then given to the jury by the bailiff. Neither party objected to the written response.

The jury returned with a verdict after deliberating for approximately one hour, finding Saylor guilty of attempted murder, assault first-degree, and tampering with physical evidence. Neither party requested that the jury be polled. The trial court then had both parties approach the bench and advised them that, "Because of the nature of the case I'm going to poll the jury." Neither the Commonwealth nor Saylor objected. The trial court then polled the jury by asking each juror, "Is this your verdict?" One juror responded, "Not completely, sir." The parties then approached the bench again and advised the court that another juror had not responded to the poll. The trial court then polled the jury again and the same juror advised the trial court that she did not concur in the verdict. The trial court then recharged the jury and returned them to the jury room to continue their deliberations. The court also provided the jury with a new copy of verdict forms for the jury instructions.

The jury again returned with a verdict in just under an hour and the trial court again polled the jury without objection from either party. The verdicts were unanimous as to Saylor being guilty of attempted murder, assault first-degree, and tampering with physical evidence. The jury was excused to return for sentencing that morning.

Prior to the beginning of the penalty phase of the trial, upon the motion of the Commonwealth and without objection from Saylor, the trial court dismissed the assault first-degree charge. After hearing proof and arguments, the jury sentenced Saylor to ten years for attempted murder and one year for tampering with physical evidence, with the recommendation that those sentences run concurrently for a total of ten years. The court sentenced Saylor in accordance with that recommendation. It is from that sentence that Saylor now appeals to this Court.

On appeal, Saylor argues that the verdict should be set aside and the matter sent back for a new trial for the following three reasons: (1) The trial court improperly communicated with the jury; (2) A mistrial should have been declared after the jury was polled three times by the presiding judge; and (3) The court committed reversible error by not admitting relevant and essential evidence. In response, the Commonwealth argues: (1) The response to the note from the jury was not improper; (2) The trial court properly polled the jury; (3) There was no error in allowing the jury to consider both attempted murder and assault first-degree; and (4) The trial court properly exercised its role as gatekeeper in the exclusion of nonrelevant evidence. We address each of these arguments in turn.

First, Saylor asserts that the trial court improperly communicated with the jury. He argues that the actions of the court below were in direct violation of Kentucky Rules of Criminal Procedure (RCr) 9.74, which provides that:

While acknowledging that his counsel acquiesced in the submission of the note from the jury, Saylor argues that there is no indication on the video record that his counsel ever consulted with him and asserts that he was never advised of his rights under RCr 9.74 and, therefore, he could not voluntarily and knowingly waive them.

In response, the Commonwealth argues that Saylor cannot now appeal an alleged error which he waived during the trial. Moreover, the Commonwealth asserts that the court's response to the note from the jury was not improper. It asserts that the court read the question in open court, entered into a discussion with counsel as to the appropriate response, and came to an agreement with counsel for both parties as to what should be the written response. The Commonwealth argues that in this instance the communication with the jury was not ex parte, and was instead made with the knowledge, participation, and consent of all parties. Because we are in agreement with the Commonwealth's first contention — that this error was unpreserved and therefore waived — we affirm.

While acknowledging that this alleged error was unpreserved below, Saylor has requested palpable error review pursuant to RCr 10.26. However, in a succession of recent decisions, our Kentucky Supreme Court has made clear that when a party agrees to or waives his objection to an issue at trial, he may not then appeal that waiver on direct appeal. This principle was reaffirmed in Mullins v. Commonwealth, wherein the court stated:

Mullins, 350 S.W.3d 434, 438-39 (Ky. 2011)(internal citations omitted). Because we are in agreement with the Commonwealth that the alleged error was invited, and one in which Saylor's counsel voluntarily participated and did not object to, we decline to grant palpable error review and we affirm.

As his next basis for appeal Saylor argues that the trial court should have declared a mistrial because it should not have allowed the jury to return to deliberations after it had been polled and it was revealed that the verdict was not unanimous. Saylor asserts that the court's actions in this regard were in violation of RCr 9.82,1 RCr 9.88,2 and RCr 9.57.3 Saylor asserts that the court erred not only in polling the jury three times sua sponte, but also when it conducted an in-chambers off-the-record discussion with the attorneys for both sides without Saylor or the jury present following the first poll, and when it specifically instructed a juror as to how she could answer following the poll.4 Saylor asserts that all of these actions taken by the court amounted to a palpable error which affected Saylor's substantial rights. Accordingly, he requests that this Court reverse and remand this matter for a new trial.

In response, the Commonwealth argues that the court appropriately polled the jury, and also again relies upon Mullins, supra, in asserting that Saylor waived his claim to cite this particular issue as error on appeal. The Commonwealth notes that the court advised the parties that, "Because of the nature of the case I'm going to poll the jury," and that neither party objected. Moreover, the Commonwealth asserts that pursuant to Kentucky Revised Statutes (KRS) 29A.320(3)(e), the court was clearly authorized to send the jury back for further deliberations after the initial poll revealed the juror's disagreement with the verdict, as did the second. The Commonwealth further asserts that the trial court is not prohibited from polling the jury on its own initiative and that the court committed no error in doing so.

Upon review of the record and applicable law, we note first our disagreement with the Commonwealth's attempt to apply the holding of our Kentucky Supreme Court in Mullins to this alleged error. We note that while Saylor's counsel did not object to the court's decision to poll the jury, counsel likewise did not invite the poll or encourage the court to conduct the poll in a manner akin to which counsel invited and participated in the creation of the jury instruction later alleged to be in error in Mullins. Accordingly, we grant Saylor's request for palpable error review, and in so doing, note that RCr 10.26 provides that:

Reviewing this matter under that standard, we find no error. In so finding, we note that while Saylor correctly argues that our rules of criminal procedure allow either party to request that the jury be polled, he has cited to no authority, nor are we aware of any, to establish that a court cannot on its own initiative poll the jury after a verdict has been returned. Indeed, as clearly stated in RCr 1.04, "The Rules of Criminal Procedure are intended to provide for a just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." The court's decision to poll the jury below served those purposes. Accordingly, we find no error in the court's decision to poll the jury nor in its decision to recharge the jury and send it back for further deliberation following the poll. Indeed, KRS 29A.320 provides:

As clearly stated in KRS 29A.320(3)(e), a court is fully authorized to send the jury out for further deliberation. The court did so in this instance, and we find no error. Accordingly, we affirm.

As his third basis for appeal, Saylor argues that the court should not have allowed the jury to deliberate on the issue of assault in the first degree as well as the attempted murder charge. He argues that these charges were improper and confusing to the jury, and notes that the court realized this when the court, after the return of the second guilty verdict but prior to the penalty phase, dismissed the assault counts as potential double jeopardy issues and because it created a "conflicting verdict." Saylor asserts that the court erred in failing to correct this situation until after the second verdict had been returned and the jury considered charges subsequently dismissed. Moreover, Saylor argues that charging him with additional offenses which were inappropriate portrayed him in a more sinister light than he should have been.

The Commonwealth disagrees and asserts that there was no error in allowing the jury to consider both charges. The Commonwealth asserts that Saylor was appropriately indicted on both charges, as the undisputed evidence revealed that he shot Napier three times at short range, that Napier believed Saylor was trying to kill him, and that Napier sustained serious physical injuries as a result of the shooting. The Commonwealth argues that these facts were more than sufficient to warrant instructions on both attempted murder and assault first-degree since a reasonable juror could have found Napier guilty of either charge. The Commonwealth asserts that when the jury returned for the penalty phase, it made a motion to the court to dismiss the assault charge and that Saylor's counsel did not object. Accordingly, the Commonwealth argues that the court acted appropriately and there was no reversible error.

Upon review, we are in agreement with Saylor that the court erred in providing the jury with instructions on both attempted murder and assault first-degree for reasons that our Supreme Court recently discussed in depth in Kiper v. Commonwealth, 399 S.W.3d 736, 740-745 (Ky. 2012). In Kiper, as in our case sub judice, the defendant was found guilty of both attempted murder and assault first-degree. On appeal, Kiper asserted that he was entitled to a new trial because a double jeopardy violation occurred. Our Kentucky Supreme Court rejected that remedy, stating:

Kiper, 399 S.W.3d at 746 (Ky. 2012). Sub judice, the court effected the same remedy as that recommended by our Supreme Court in Kiper; only it did so prior to the time that the penalty phase occurred. Accordingly, though error occurred, that error was appropriately remedied by the court and, moreover, was remedied without any objection from Saylor's counsel. Accordingly, we find no basis for reversal and affirm.

We now turn to Saylor's fourth and final basis for appeal, namely, that the court erred in failing to admit what he asserts was relevant and essential evidence. Specifically, he argues that the court erred in refusing to admit the deposition of Dr. Echeverria, and that the court should have granted his motion to have the jury view the scene where the events at issue occurred. Concerning the deposition of Dr. Echeverria, Saylor argues that the court erred in its agreement with the Commonwealth that the deposition was only opinion evidence which was not relevant and would offer no assistance to the jury in rendering its decision. Saylor argues that the deposition of Dr. Echeverria was relevant to Saylor's defense of self-defense, noting that although he was armed and Napier was not, Saylor was 76 at the time of the event and suffered from poor physical health and multiple physical ailments. Saylor asserts that as his treating physician, Dr. Echeverria was in the best position to discuss these conditions and render an opinion as to Saylor's ability to take part in a physical altercation and why he would feel the need to carry a firearm as a result. The Commonwealth disagrees and asserts that the court properly exercised its role as gatekeeper in the exclusion of nonrelevant evidence. We agree.

Prior to addressing the arguments of the parties on this issue, we note that a trial court's ruling regarding the admission or exclusion of evidence is review for an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We have reviewed this matter with that standard in mind.

Kentucky Rules of Evidence (KRE) 702 governs the admissibility of expert witness testimony, and states as follows:

Further, we note that before an expert witness can testify before the trier of fact, four perquisites must be met pursuant to Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997):

Stringer, 956 S.W.2d at 891.

Upon review of the record and applicable law, this Court is of the opinion that the court below properly applied KRE 403, KRE 702, and Stringer in determining the admissibility of Dr. Echeverria's deposition testimony. The court reviewed the deposition transcript prior to the hearing and made a finding on the record that Dr. Echeverria had no contact with Saylor since 1999. In addition, the court found no evidence that Dr. Echeverria had reviewed any medical records that were generated after 2005 with respect to the treatment or nontreatment of Saylor's alleged heart condition. The trial court then denied Saylor's motion to introduce the deposition testimony on the basis of those findings. Upon review, we find no abuse of discretion in the court's determination that the deposition testimony was not relevant in light of the significant passage of time since Dr. Echeverria had last examined Saylor, and in light of the fact that the medical records at issue were from seven years prior to the shooting. Finding no error in this determination, we affirm.

Saylor also argues that the court erred in denying his motion for the jury to visit the scene of the events at issue. Saylor asserts that an in-person viewing of the scene was crucial to his defense because it would have shown the jury that the only choice Saylor had was to cross the swinging bridge and pass Napier's residence when he traveled from his own residence to check his mail; Saylor's mailbox was located where the confrontation took place. Further, Saylor asserts that a visit would have demonstrated the long span across the river on a narrow bridge across which he would have had to retreat. Saylor thus argues that a jury visit to the scene, coupled with the expert testimony of Dr. Echeverria, would have made it clear that Saylor's actions were reasonable under the circumstances. The Commonwealth disagrees and asserts that the court was well within its discretion to deny Saylor's motion for a jury scene visit in light of other evidence which was to be submitted into the record.

Upon review of the record, the arguments of the parties, and the applicable law, we affirm. The criteria for the viewing of a crime scene by a jury is subject to KRS 29A.310, which states, in relevant part:

The decision of whether a jury is to view the scene of a crime lies within the sound discretion of the trial court. Tungate v. Commonwealth, 901 S.W.2d 41, 44 (Ky. 1995). It is not an abuse of discretion when the trial court refuses to allow the jury to view the crime scene when there are photographs, eyewitness testimony, and other visual aids/evidence to adequately inform the jury of the scene. Fields v. Commonwealth, 274 S.W.3d 375 (Ky. 2008), overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010).

Sub judice, the court denied Saylor's motion for a jury scene visit based upon the fact that both Saylor and the Commonwealth intended to introduce photographs of the scene, both from the ground level and aerially. During the trial, the Commonwealth did in fact introduce photographs of the scene of the shooting and Saylor introduced aerial photographs. Both Saylor and Napier testified concerning the scene where the events occurred. Accordingly, we are in agreement with the Commonwealth that the court was well within its discretion to deny Saylor's motion for a jury scene visit, and we affirm.

Wherefore, for the foregoing reasons, we hereby affirm the June 14, 2013, judgment and sentence on plea of not guilty entered by the Harlan Circuit Court, the Honorable Marc Rosen, presiding.

ALL CONCUR.