Previously, this Court has held that the Confrontation Clause was violated when a "KSP lab report and its conclusions were admitted at trial in the absence of [the lab technician]." Peters v. Commonwealth, 345 S.W.3d 838, 841-43 (Ky. 2011). Following Crawford and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), we determined that, "[b]ecause the report is a testimonial statement, neither it, nor its contents, could be admitted at trial in the absence of the declarant[.]"

Kentucky law allows the prosecution to present rebuttal evidence that contradicts the defendant's assertions or impeaches the credibility of his witnesses. See, e.g., Peters v. Commonwealth, 345 S.W.3d 838, 844 (Ky. 2011). Rebuttal in Bowling's trial followed that mold: Ledford Bowling and Sheriff Brandenburg impeached the credibility of defense witnesses, see 23 T.E. 3442-43, 3506-07, and Isaacs rebutted Ledford Bowling's testimony that he owned the gun found in Ronnie Lee Bowling's trailer, id. at 3451-52.

Trial courts are granted broad discretion in determining the admissibility of rebuttal evidence and we review for an abuse of that discretion. Peters v. Commonwealth, 345 S.W.3d 838, 844 (Ky. 2011). "Rebuttal evidence is evidence that 'tends to counteract or overcome the legal effect of the evidence for the other side.'" Fraser v. Miller, 427 S.W.3d 182, 184-85 (Ky. 2014) (quoting Reserve Loan Life Ins. Co. v. Boreing, 157 Ky. 730, 163 S.W. 1085, 1087 (1914)).

This distinction was put on full display in this Court's ruling in Little .Peters v. Commonwealth , 345 S.W.3d 838, 842 (Ky. 2011).Crawford , 541 U.S. at 68, 124 S.Ct. 1354.

Appellant next argues that his Sixth Amendment right of confrontation was violated because the Commonwealth introduced into evidence through the testimony of two Kentucky State Police troopers the results of a drug test taken by Muse. Appellant correctly contends that the results of Muse's drug test should have been introduced through the lab technician who performed the analysis so that he or she could be subjected to cross-examination. We held in Peters v. Commonwealth, 345 S.W.3d 838, 842 (Ky. 2011), relying upon Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) that a defendant's Sixth Amendment right to confront the witnesses against him was violated when a police lab report and its conclusions were admitted at trial in the absence of the technician who made the report. Our holding in Peters is consistent with the contemporaneous decision of the United States Supreme Court in Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).

See Shaw v. Commonwealth, 497 S.W.2d 706, 710 (Ky.1973) ( “Trial courts are given a wide discretion in the matter of permitting a party to reopen in order to introduce new evidence. We find no abuse of that discretion, here....”); See also Peters v. Commonwealth, 345 S.W.3d 838, 844 (Ky.2011) (defining the abuse of discretion standard) (citation omitted). The trial court's decision to empanel a new jury is not clearly erroneous, arbitrary, unreasonable, unfair, or unsupportedby sound legal principles.

"Crawford held that the Sixth Amendment prohibits the admission of the testimonial statement of a declarant who does not appear at trial, unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination." Peters v. Commonwealth, 345 S.W.3d 838, 842 (Ky. 2011). Appellant did not preserve this issue at-trial, but requests we review it on appeal for palpable error.

, the prosecution should be prepared to present its evidence to show the links in the chain of custody and to provide for the right of a defendant to confront those who provide testimonial evidence against him, such as the lab technician who personally confirmed the presence of a controlled substance. See Peters v. Commonwealth, 345 S.W.3d 838 (Ky. 2011) (because lab testing and conclusions are testimonial in nature providing evidence on an element of a drug possession charge, the right to confrontation typically requires the testimony of the analyst, although an error in this regard may not rise to the level of palpable error).

"[T]he Sixth Amendment prohibits the admission of the testimonial statement of a declarant who does not appear at trial, unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination." Peters v. Commonwealth, 345 S.W.3d 838, 842 (Ky. 2011) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). A statement contained in a report "is testimonial 'if the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purposes . . . is to establish or prove past events potentially relevant to later criminal prosecution.'"

First, Crawford (and the Confrontation Clause) only prohibits the admission of testimonial statements. Peters v. Commonwealth, 345 S.W.3d 838, 842 (Ky. 2011). And, second, it only covers hearsay, i.e., an out-of-court statement "offered in evidence to prove the truth of the matter asserted."