4

2004-CA-001636
Size: 133 kb
Date: 5/10/2007

 prosecutor's misconduct during closing argument - the prosecutor stated during the Commonwealth's closing argument, “But I ask you to go back and find these guilty verdicts, and perhaps we can protect some future young lady[.]”  Held error cured by admonition.

Hallum first notes that the Supreme Court of Kentucky has condemned a prosecutor's remarks suggesting that a jury should convict a criminal defendant in order to protect future victims. Ice v. Commonwealth, 667 S.W.2d 671 (Ky. 1984

Pursuant to Hallum's request, the trial court admonished the jury to disregard the prosecutor's improper remarks. However, the trial

court did not rule on Hallum's request for a mistrial, and Hallum never argued for a mistrial and never requested a ruling. Thus, Hallum failed to preserve that issue for appellate review. See Bratcher, 151 S.W.3d at 350

4

2004-CA-002198
Size: 30 kb
Date: 1/31/2007

Pelphrey testified that the four-foot carpenter’s level was made of wood and aluminum and that Elmer, Sr. had swung it like a baseball bat when attacking Waterson. Such evidence regarding the level easily satisfies the statutory definition of a “dangerous instrument.”

The fact that the actual level was not presented to the jury was not prejudicial.

Elmer, Sr. also avers that the Commonwealth’s

reference to the items used to attack Waterson and Pelphrey as “weapons” constituted reversible error. We disagree.

 At trial,the Commonwealth referred to the stick, claw hammer and level as weapons during its examination of witnesses and during closing argument. Elmer, Sr. argues that the Commonwealth’s reference to the items as weapons amounted to prosecutorial misconduct.

Elmer, Sr. objected to the Commonwealth referring to the items as weapons during the case in chief and the Commonwealth rephrased its question, without an admonition given to the jury.

However, Elmer, Sr. did not object to the Commonwealth’s use of the term “weapon” during its closing argument. We note that Elmer, Sr. did not properly preserve the issue of error in the closing argument and is thus not subject to appellate review.  To warrant reversal, prosecutorial misconduct “must be so serious as to render the entire trial fundamentally unfair.” Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996).

Upon review, we “must focus on the overall fairness of the trial, and not the culpability of the prosecutor.” Slaughter v. Commonwealth, 744 S.W.2d 407, 411-412 (Ky. 1988).

we are unable to say that his trial was rendered fundamentally unfair.

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2004-CA-002199
Size: 29 kb
Date: 1/31/2007   companion case to 198 above, some misconduct, same ruling

4

2004-CA-002200 
Date: 1/31/2007   companion case to 198 above, some misconduct, same ruling
Size: 29 kb
Date: 1/31/2007

2

2004-SC-000459-MR.pdf
Size: 750 kb
Date: 2/22/2007   failure to deliver an effective closing argument; and (12) failure to object to alleged prosecutorial misconduct. Upon review, we agree with the trial court that Appellant's claims either (1) do not demonstrate or are insufficient to prove deficient performance; or (2) even where there may be deficient performance, the deficient performance does not, either cumulatively or individually, rise to the level of creating sufficient prejudice to entitle Appellant to a new guilt-phase trial

Appellant next alleges he is entitled to a new guilt-phase trial because the

prosecutor withheld materially exculpatory evidence in violation of Brady v. Maryland , 373 U.S . 83, 83 S .Ct . 1194, 10 L.Ed .2d 215 (1963

According to Appellant, the Brady violation occurred when the prosecutor failed to make known to Appellant that Mallory's bond on pending robbery charges was reduced from a cash bond to release,on his own recognizance shortly after Mallory disclosed Appellant's alleged inculpatory statements. Appellant argues that this evidence could have impeached Mallory's motives for testifying against Appellant and thus, affected the outcome of the trial

2

2005-CA-000068
Size: 39 kb
Date: 7/14/2006 

Redd next contends that the trial court erred in

overruling his objections to comments made during the

Commonwealth’s closing argument in the penalty phase which he characterizes as facts not in evidence. More specifically he complains of argument blaming Redd for the city’s drug problems, where there was no evidence but that he sold drugs to Quarles on two occasions, and implying that Redd was a “big-time drug dealer” due to the federal government’s DEA looking at Redd,

where the evidence indicated that the DEA was involved only due to the local law enforcement’s targeting of Redd and its request for help from the DEA in cleaning up the drug problems in the county. We find no error.

The Commonwealth argued that the amount sold was “a significant amount enough to warrant the attention of the DEA. The DEA came in here to help stop the drug problem and [Redd] was identified as a big enough source to use them to go toward.” Although Redd made no contemporaneous objection, his objection following the jury’s retiring to deliberate was overruled on the basis that the comments were proper inferences from the evidence.

Looking at whether the Commonwealth’s conduct was so

egregious as to deny Redd a fair trial, we find no error

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2005-CA-000804
Size: 140 kb
Date: 5/3/2007  Lee argues that the Commonwealth engaged in prosecutorial misconduct by vouching for the credibility of its witnesses and by referring to Lee and his brother Richard as liars.

Finding no merit to any of Lee's claims, we affirm the judgment of conviction Because the Commonwealth complied with KRE 613 and KRE 801A when it introduced Richard's prior inconsistent statement, the trial court did not abuse its discretion when it permitted the introduction of that statement

2

2005-CA-001072
Size: 158 kb
Date: 3/1/2007 

The second issue Prater raises on appeal concerns her motion for mistrial based on prosecutorial misconduct during voir dire because the Commonwealth’s attorney stated that the charges against Prater included operating a motor vehicle second offense. Defense counsel immediately objected and moved for a mistrial based on

prejudice in revealing that Prater had a prior conviction for DUI.23

The circuit court denied the motion and restated the charges referring to the operating of a motor vehicle under the influence second degree count as simply “driving under the influence.” Prater contends that mentioning the fact that she had another DUI conviction introduced

“unavoidable prejudice” that requires reversal of her conviction given the lack of evidence on this issue.

It is the prejudicial impact exposure to harmful information has upon a juror that is determinative, not the exposure itself   a jury is presumed to follow a curative admonition so that it removes the prejudice precipitated by the event which brought about the admonition

12

2005-CA-001145

Size: 46 kb
Date: 1/4/2007

 Walker also contends that the prosecuting attorney engaged in such egregious misconduct both before and during his trial that he was denied a fundamentally fair trial.

Walker’s claims of prosecutorial misconduct fall into two

subcategories: discovery violations and prejudicial statements made by the prosecuting attorney

the Commonwealth asked about a statement allegedly made by Kevin Walker: “Man, I don’t want to go back.” The officer confirmed that Kevin Walker had made the

statement.

 Lanelle Walker immediately moved for a mistrial arguing that the Commonwealth had failed to disclose this

statement made by the co-defendant, Kevin Walker.

Lanelle Walker also argued that Kevin Walker’s undisclosed statement referred to the fact that Kevin did not want to return to prison and it implicated him since Kevin would only be worried about returning to prison had he done something wrong.

While the Commonwealth should have disclosed the statement and should not have inquired about the statement at trial, Walker brought this to the court’s attention and the jury was admonished to disregard the objectionable testimony. The admonition was an

appropriate response to Lanelle Walker’s objection.

The circuit court stated that the prosecuting attorney had violated a fundamental principle of the criminal justice system by mentioning Kevin Walker’s criminal record. However, instead of declaring a mistrial, the court admonished the jury to disregard the officer’s testimony.

The Commonwealth should have disclosed in advance of trial that the firearms examiner was going to testify about the pressure needed to fire the pistol.

Nevertheless, we conclude that there is no

reasonable possibility that the verdict would have been

different had the full report been disclosed before trial began.

In short, we conclude that the error was harmless.15

Walker also complains that prior to trial the

Commonwealth told him that no fingerprint testing had been performed on the pistol. However, at trial Etinene Bennett, an evidence technician, testified that she attempted unsuccessfully to lift fingerprints from the pistol. Walker futilely objected to Bennett’s testimony. On appeal, Walker claims that the Commonwealth engaged in misconduct when it failed to disclose that Bennett had attempted, yet failed, to lift fingerprints

from the pistol.

Walker objected to Bennett’s testimony since the Commonwealth had told him there were no photographs. In response to Walker’s objection, the circuit court allowed Bennett to continue her testimony but instructed her not to testify regarding what the photographs depicted. On appeal, Walker insists that the Commonwealth engaged in misconduct when it failed to inform Walker that photographs had been taken but were unavailable.

We detect no prejudice to Walker in Bennett’s

testimony. No fingerprints connected him to the gun, which, in any event, he admitted handling and no photographs of the crime scene were admitted, nor was Bennett permitted to describe what they depicted.

B. Comments made by the Commonwealth

Walker claims that the Commonwealth made numerous

statements during the trial that constituted misconduct.

Walker initially complains of questions asked by the

Commonwealth when he was cross-examined. Walker was asked if he had seen the surveillance videotape from the liquor store and he responded affirmatively. Then he was asked if he had discussed possible defenses with his trial counsel. Before Walker could answer, his counsel objected. During a bench conference, Walker’s attorney stated that she thought that the Commonwealth

was implying that she and Walker had fabricated his testimony

 On appeal, Walker insists the Commonwealth engaged in misconduct by failing to disclose the statement prior to trial and by soliciting testimony about the statement at trial.

after they had watched the surveillance video. Counsel also expressed concern that the Commonwealth was attempting to delve into matters that were protected by the attorney-client privilege. After listening to the concerns of Walker’s attorney, the court allowed the Commonwealth to continue its cross-examination with a warning to avoid questions that could delve into privileged communications between Walker and his

attorney.

By implying that Walker and his attorney had

fabricated Walker’s testimony, the Commonwealth impugned the integrity and honesty of Walker’s counsel. Such behavior is unprofessional and altogether improper. Even so, we must consider whether the Commonwealth’s inquiry affected the overall fairness of Walker’s trial.16 In this instance, we conclude that the Commonwealth’s conduct was not so egregious that it rendered Walker’s trial fundamentally unfair

Later still, the prosecuting attorney referred to a hypothetical conversation between Lanelle Walker and his cousins just prior to the robbery. Walker objected, arguing that the record contained no evidence that such a conversation occurred. The circuit court agreed. Then, the prosecuting attorney asked the jury which

version of the robbery was more likely to have occurred, the Commonwealth’s or Walker’s. Walker objected and argued that the Commonwealth was suggesting the wrong standard of proof. Again, the circuit court agreed and admonished the jury that the Commonwealth had the burden of proof, not the defendants. After that, the prosecuting attorney told the jury that Walker was lying, that there must be some consequence for lying and that

Walker must pay for doing so. Walker objected again, but the court stated that the prosecuting attorney had not “crossed the line.”

When considering allegations of prosecutorial misconduct that occurred during closing argument, we must determine whether or not the conduct was so egregious that it

denied the defendant his constitution right to due process of law.17 And we must focus on the overall fairness of the trial, not the culpability of the prosecuting attorney.18 In the present case, Walker makes numerous allegations that the Commonwealth engaged in misconduct during its closing argument.

Walker objected in each instance and, where appropriate, the circuit court admonished the jury not to consider the remark.

Since the court granted Walker relief at trial, the prosecuting attorney’s alleged misconduct did not adversely affect the overall fairness of Walker’s trial.

While the prosecuting attorney was reviewing the

instructions with the jury, he commented that all defense

attorneys have in their “bag of tricks” the strategy of having their clients admit guilt to a lesser offense. He explained that by admitting to a lesser offense, criminal defendants hoped to show juries that they were not afraid to admit their guilt.

Walker did not object to these comments. Walker also complains of various other statements that the prosecuting attorney made during closing argument that he contends constituted misconduct.

Here again, Walker did not object to these statements. While he acknowledges that he failed to preserve these alleged errors, Walker invites us to consider them as palpable error under RCr 10.26.

According to that rule of criminal procedure, palpable

error occurs when the substantial rights of a party have been affected and a manifest injustice has resulted. Put another way, palpable error has occurred if, upon consideration of the whole case, we determine that there is a substantial possibility that the result would have been different absent the alleged unpreserved error.19 Upon reviewing record in this case as a whole and noting the strong evidence against Walker, we find that, absent the alleged misconduct, there was no substantial

possibility of a different result. We find no palpable error and decline to review the merits of these claims.

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2005-CA-001767
Size: 29 kb
Date: 1/4/2007   Chatman contends that prosecutorial misconduct occurred during sentencing, and the error requires reversal of his sentence.

 The prosecutor told the jury that they were

probably feeling bad about sentencing Chatman to an extended term, but that “he’s not interested in your help.” Chatman’s objection to this statement was overruled.  He objected to the prosecutor’s statement that “if it didn’t bother him, then it shouldn’t bother you” referring to Chatman facing a long sentence. That objection was also overruled.

The jury may presume a defendant’s intent from his

actions. See: Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002). The statements by the prosecutor do not warrant reversal of the conviction or sentence below.

During the sentencing phase of the case, the prosecutor informed the jury that Chatman had committed six

felony offenses over the preceding nine years.

 Defense counsel made objection to those statements. The objections were overruled. The record reflects that Chatman was sentenced for five previous felony offenses, four of which occurred on the same day. Those four felonies were the conviction he was on parole for at the time of the alleged escape. The other felony

discussed by the prosecutor was the escape conviction the jury had just rendered. The discussion regarding the number of felony offenses was held in the presence of the jury, making it clear which previous convictions were being referred to.

Chatman asserts that the prosecutor failed to meet the

high standard imposed on him by the law, requiring him to

represent the evidence in its true light. Edwards v.

Commonwealth, 182 S.W.2d 948, 952 (Ky. 1944). He argues that the prosecutor made statements not justified by the facts, thereby creating reversible error. Kitchen v. Commonwealth, 165 S.W.2d 547, 553 (Ky. 1942).

 The statements were made during arguments by the prosecutor, a time when some leeway is permitted. Butcher v. Commonwealth, 96 S.W.3d, 12 (Ky. 2002).

We believe that the statements did not rise to the level of reversible error.

6

2005-CA-002003
Size: 95 kb
Date: 3/9/2007  The jury selection issues, as well as the additional allegation of prosecutorial misconduct, should have been raised in his direct appeal under RCr 10.26, as the rest of the issues in that appeal were

8

2005-CA-002057
Size: 100 kb
Date: 6/27/2007   3)

(Defendant) failed to object to prosecutorial misconduct;   The prosecution asked Johnson and his brother, Randall, if it was true that Johnson kicked the dashboard of Randall's car on the way to hospital because he had killed the wrong man. Both Johnson and Randall denied this and no objection was made. However, defense counsel did

object when the prosecutor asked Randall about a conversion his wife had regarding the alleged incident. The Supreme Court did not consider this alleged error on direct appeal because it was unpreserved   In

McClellan v. Commonwealth, 715 S.W.2d 464, 471 (Ky. 1986), the Kentucky Supreme Court found a similar statement to be prejudicial error. However, we are not reviewing simply for error,

6

2005-CA-002361
Size: 108 kb
Date: 8/23/2007 

Johnson timely filed this appeal alleging prosecutorial misconduct and errors while instructing the jury Appellant’s counsel moved to quash the indictments and to recuse the local prosecutor for prosecutorial misconduct

alleging the commonwealth attorney had improperly tried to

influence the local population and potential venirepersons.

The commonwealth attorney moved for a change of venue alleging that

the local sheriff would sway the jurors against the commonwealth

attorney and that pre-trial publicity would make it difficult for the Commonwealth to receive a fair trial. After a hearing, to which opposing counsel objected to the respective motions, the trial court denied both motions.

The action of the commonwealth attorney in providing the press release was

motivated by his dissatisfaction with the local sheriff.

Unfortunately, such action had the potential of depriving the appellant of his right to a fair and impartial jury. However, the appellant can point to no actual prejudice, no juror on the final panel had advised they were aware of or influenced by the story, and finally the story was not part of the evidence

presented at trial. United States v. Andrews, 347 F.2d 207 (6^th Cir. 1965).

It is readily apparent both examinations bordered on a school ground exchange vis-à-vis the prosecutor and the witness On several occasions the appellant’s answers were non-responsive and the prosecutor’s questions were more like editorials   This Court can find no abuse of that discretion.

2

2005-CA-002430
Size: 134 kb
Date: 3/1/2007

Prosecutorial misconduct may also warrant unilateral dismissal. See, e.g., Commonwealth v. Baker, 11 S.W.3d 585 (Ky.App. 2000) (presentation of false testimony to grand jury).

Fisher subsequently moved to dismiss the indictment based upon the

Commonwealth having released the witnesses without the trial court’s permission

 Here, however, the trial court concluded that the Commonwealth’s release of its witnesses was as a result of confusion – not calculated efforts by the Commonwealth aimed at gaining a strategic advantage or for some other improper motive.

2

4

2005-CA-002482
Size: 40 kb
Date: 1/31/2007  

Perry’s second argument focuses on comments made by the prosecutor in

his closing argument when he referred to Perry as a “devil.” Perry contends that the statement constituted prosecutorial misconduct that rendered the trial unfair.

In any consideration of alleged prosecutorial misconduct, “[i]t is not

enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986).

Rather, the question is “whether the prosecutor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. 

 The objectionable comments were made by the prosecutor in reference to

Gregory’s incriminating testimony against Perry. The prosecutor acknowledged that “I agree it is a shame that we had to make a deal [with Gregory].” He then told the jury that in “the meth trade, sometimes you have to go to hell to catch the devil” and reiterated that “we [the prosecution] went to hell cutting a deal with Gregory to catch the devil.” The prosecutor then pointed at Perry.

(Defendant)…has suggested that the jury in this case was especially susceptible to these remarks because Kentucky is the “buckle of the Bible belt” where “church folk” take their religion seriously and do not think of the devil as a mythological creature.

We are persuaded that the remarks were rhetorical rather than literal and that they were not calculated to persuade the jury that Perry was in fact a devil or one of his actual minions.

The prosecutor’s remarks constituted hyperbole intended to explain in figurative terms why the Commonwealth entered into a plea agreement with Gregory. See State v. Bell, 603 S.E.2d 93, 107-108 (N.C. 2004) (prosecutor’s statement that “[i]f you are going to try the devil [the defendant], you have to go to hell to get your witnesses” was held not to be improper characterization or name-calling).

We hold that the prosecutor’s metaphorical comments comparing Perry to the devil were not egregious enough to taint the overall fairness of the trial.

2

4

2005-CA-002587
Size: 107 kb
Date: 6/14/2007 

Next, Hood points to testimony from another detective who, in response to a question from the defense, testified that an employee from Hawaii Spa was convicted of prostitution. The trial court struck that detective's testimony in its entirety, and admonished the jury to disregard it. The admonition cured any error in this respect

Hood contends that she is entitled to a new trial because of

prosecutorial misconduct during the Commonwealth's closing argument. Hood did not contemporaneously object to the Commonwealth's closing argument on the bases raised on appeal. Our review, therefore, is governed by the palpable error standard.

Also, we review claims of prosecutorial misconduct to determine whether the alleged misconduct is so egregious, improper, or prejudicial as to have undermined the overall fairness of the proceedings. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).

The portions of the Commonwealth's closing argument about which Hood complains were responsive to Hood's and her co-defendant's closing arguments. Clearly the prosecutor's remarks did not prejudice Hood's right to a fundamentally fair trial

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2005-SC-000100-MR.pdf
Size: 567 kb
Date: 1/16/2007 

 Appellant also alleges that he was deprived of a fair trial due to

prosecutorial misconduct during the Commonwealth's closing argument. As noted earlier, the driver of the vehicle did not testify. In closing argument, the Commonwealth informed the jury that Appellant's counsel had the power to subpoena witnesses but did not call the driver of the vehicle, insinuating that she would not have been helpful to Appellant's case . Appellant objected but the trial court overruled the objection .

Appellant asserts that the Commonwealth's comments were inflammatory and

impermissibly shifted the burden of proof to him    "This Court has repeatedly held that a prosecutor is permitted wide latitude during closing arguments and is entitled to draw reasonable inferences from the evidence, as well as

respond to matters raised by the defense ."

" The Commonwealth's comments were somewhat responsive to Appellant's closing argument and simply pointed out that Appellant had failed to offer any evidence to support his counsel's speculations .'6

The ruling of the trial court did not amount to an abuse of discretion .

Lastly, Appellant complains of the Commonwealth's "send a message"

comments during closing arguments. As Appellant did not object to these comments, the issue is unpreserved .

Appellant requests a review for palpable error under RCr 10.26. The Commonwealth asserts that the comments were proper because the jury

was asked to send a message only to Appellant, not to the community. We do not believe that this distinction renders the "send a message" mantra acceptable.

Nonetheless, we cannot say that the comments constituted an error so fundamental as to threaten Appellant's entitlement to due process of law, as is required to demonstrate manifest injustice ." However, had the issue been preserved, a more rigorous analysis would have been required.

Thus, while such comments do not constitute manifest error in the instant case, we note that, generally, any benefit the Commonwealth perceives in utilizing such an argument is far outweighed by the risk of reversal on appeal

2

2005-SC-000128-MR.pdf
Size: 1348 kb
Date: 5/15/2007

in Berger v. United States, 17 the U.S. Supreme Court reviewed various

acts of prosecutorial misconduct including the discussion of statements the defendant allegedly made to the prosecutor in the hallway.

 Commenting on the role of the prosecutor in an adversarial system, the Court said: The United States Attorney is the representative not of an ordinary

party to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not that it shall win a case,

but that justice shall be done .

As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. In light of these broad principles, the Court held that the prosecutor's misconduct was reversible error:

  It is fair to say that the average jury, in a greater or less degree, has

confidence that these obligations, which so plainly rest upon the

prosecuting attorney, will be faithfully observed.

Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none The foregoing authorities leave no doubt that assertions of fact from counsel as to the content of prior conversations with witnesses have the effect of making a witness

of the lawyer and allowing his or her credibility to be substituted for that of the witness.

Such a practice also violates KRE 6032° and KRE 802. 2' Any such practice is improper and, subject to harmless error review, is an appropriate basis for reversal. With respect to harmless error, Justice Scott's dissenting opinion more or less acknowledges error, but contends that it was harmless. As the error implicated federal constitutional rights, a necessary conclusion is that it was "harmless beyond a reasonable doubt. ,22

While there was substantial evidence of appellant's guilt, "[w]e are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction."23

 When the prosecutor effectively became a witness and confessed guilt for

the defendant as if the confession came from his lips, the error was particularly egregious.

 A confession is devastating evidence of guilt, but, if possible, its effect is

elevated when the prosecutor becomes the defendant's voice. When that happens, the defendant's bundle of constitutional rights evaporates The dissenting opinion forgives the Commonwealth's Attorney by saying that she

was trying to "make the best of a bad situation with a difficult witness." Hardly a lawyer who has tried a case has not been disappointed by the testimony of a witness on direct examination .

 Our rules do not provide, however, that when the witness disappoints, the

lawyer may testify in his stead. And that's what happened here.

A significant flaw in this case was failure of the Commonwealth's Attorney to

observe KRE 611(c) . The witness was called by the Commonwealth during its case in chief. As a witness for the Commonwealth, leading questions should not have been allowed.

 If the trial court had sustained an early objection based on the form of the

question and directed counsel to refrain from leading questions, counsel would have avoided the temptation to place the substance of the alleged statement before the jury from her lips rather than awaiting the testimony of the witness.

What transpired here is more than some technical violation of evidence rules or proper conduct by lawyers. By means of the prosecutor's assertions, statements attributed to Appellant were placed before the jury without any witness saying that Appellant made such a statement. This goes to the heart of fundamental fairness and due process of law.

As such, we reverse Appellant's conviction and remand this case for a new trial in conformity with this opinion.

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2005-SC-000132-MR.pdf
Size: 1071 kb
Date: 8/20/2007 

 Additionally, at the close of trial, counsel for Appellant objected to the

prosecutor's closing argument. He claimed that the prosecutor was urging the jury to convict Appellant to set an example and for the sake of the community  Appellant also argues that the prosecutor committed misconduct during the guilt phase closing argument.

The prosecutor argued :

This verdict is going to be used not only in this case, but it'll be used in other cases because when we work out plea agreements, we look at what juries do in similar cases. So what you do here today will be the law here in Greenup

County. Defense counsel objected .

The trial court overruled the objection agreeing with the prosecutor that the argument was a proper "deterrence" argument.

 The prosecutor continued :

What you do in this case will deter future crimes or it will tell people that they can get away with future crimes. You know, if David Adkins is able to convince you that this was a self inflicted  gunshot wound and he gets away with this, what's to keep anybody from doing the same thing and coming up with

any hare-brained story they want as long as there's no other witnesses around, and saying take your pick.

 It was accidental . She shot herself. I did it; it was an accident.

What's to keep anybody from doing that? Tell me, please tell me, that it's not that easy to take a 12-gauge shotgun and blow somebody's head off and come up here with all these hare-brained stories and walk out of here without a conviction for murder. Tell me that's not possible.

There was no further objection by defense counsel.

Appellant argues that the prosecutor's comments, both before and after the

objection, prejudiced him at trial. To constitute reversible error, a prosecutor's

comments must be serious enough to render the whole trial fundamentally unfair. Partin v. Commonwealth , 918 S .W.2d 219, 224 (Ky. 1996)  the Court approved the argument. In Wallen v. Commonwealth , 657 S.W.2d 232, 234 (Ky.1983), this Court again acknowledged that during closing arguments prosecutors can base arguments on deterrence or reasons reasonably inferred from the evidence .

In this case, the prosecutor in closing arguments explained to the jury the

deterrent effect on future crimes their decision would have. Then the prosecutor attacked Appellant's conflicting stories, which the prosecutor believed to be merely fabrications to help provide doubt. The prosecutor's closing argument in this case was not egregious nor did it make the trial fundamentally unfair. This Court finds no error, but if it were, it would be harmless .

2

2005-SC-000180-MR.pdf
Size: 2592 kb

appellant argues that it was improper for the Commonwealth's Attorney to thank the jury for its service on behalf of the victims and the Commonwealth's staff. The statement was not objected to at trial. In Thompson v. Commonwealth , 147 S.W.3d 22, 46 (Ky. 2004), this Court agreed that the

Commonwealth should not imply that it was acting on behalf of victims, since the Commonwealth's duty is to represent the Commonwealth .

In Thompson , this court concluded that the Commonwealth's statement that it was representing the victim approached the "line of impropriety" but still fell within the latitude of acceptable closing argument . Id . The prosecutor's statement of appreciation was even less meaningful than the statement in Thompson that the Commonwealth acted for the victim, and so it logically falls within the bounds of permissible argument as well.

Appellant next contends that the Commonwealth argued facts not in evidence.

This statement was also made without objection from the defense . Appellant testified that he had purchased the items taken in the burglaries from a man named Billy, who had told appellant that he bought them at a flea market.

The