436 S.W.3d 186
Ky.2013Background
- Police stakeout linked Appellant to a robbery; photographs identified Appellant and his brother in a tan sedan.
- A high-speed chase followed when officers attempted to stop the sedan; all three occupants fled as the car crashed.
- Basemore was immediately apprehended; he advised that Appellant and his brother were the other occupants and that Appellant drove.
- Warrants issued for the two brothers; Appellant was later found in possession of cocaine at arrest.
- Jefferson Circuit Court jury convicted Appellant of first-degree wanton endangerment, first-degree fleeing or evading, possession of cocaine, and second-degree criminal mischief; recommended 13-year total sentence and PFO finding with a 20-year enhancement, which the trial court imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of RCr 9.40 against rules authority | Glenn contends RCr 9.40 is invalid and unconstitutional. | Commonwealth argues Glenn failed to provide notice under KRS 418.075 before challenging statute validity. | Court upholds RCr 9.40 and Glenn's challenge merits merits review. |
| Failure to give no adverse inference instruction | Glenn asserts trial court erred by not giving no-adverse-inference instruction in PFO phase. | No-preservation barriers apply; instruction not required absent request. | No reversible error; preserved requirement not met. |
| Mischaracterization of PFO as a separate crime in closing | Commonwealth improperly framed PFO as a separate crime to punish Glenn. | Opening/closing are not evidence; mischaracterization was not intended to prejudice; Glenn qualified as first-degree PFO. | Mischaracterization improper but not palpable error. |
Key Cases Cited
- Grider v. Commonwealth, 404 S.W.3d 859 (Ky.2013) (review of constitutionality barred when paired with KRS 418.075; comity considerations)
- Commonwealth v. Reneer, 734 S.W.2d 794 (Ky.1987) (comity and separation of powers; standards for rule promulgation)
- White v. Commonwealth, 770 S.W.2d 222 (Ky.1989) (PFO is a status, not a separate crime)
- Owens v. Commonwealth, 329 S.W.3d 307 (Ky.2011) (limited use of PFO status references in penalty phase)
- Stopher v. Commonwealth, 57 S.W.3d 787 (Ky.2001) (prosecutors have leeway in closing arguments)
- Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky.1987) (limits on closing argument content)
- Martin v. Commonwealth, 207 S.W.3d 1 (Ky.2006) (palpable error standard and preserved error analysis)