McCleery v. Commonwealth, 2013 Ky. LEXIS 407

McCleery was convicted of first-degree fleeing and evading police, burglary, theft, and persistent felony offender status, with sentences totaling forty years, consecutive to some counts.
Tina Ball identified McCleery as the man wearing a black toboggan who rode in an Explorer while asking for guns and reporting the vehicle to police.
The Explorer, driven by co-defendant Darcy, fled from Deputy Gilpin through a 45 mph zone, ran three stop signs, and dumped a passenger who fled on foot; police later found guns and money in the vehicle.
McCleery was later detained by Deputy Henley in a separate Burglary investigation after being found in a wet toboggan near the same area.
The Commonwealth presented evidence of McCleery’s complicity, including his voluntary entry into the Explorer and continued flight on foot after the initial escape.
At trial, McCleery argued for a directed verdict and later challenged the jury’s note-taking during deliberations; the court denied these positions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Directed verdict sufficiency	McCleery contends no substantial risk or complicity proven.	MeCleery argues insufficient evidence for fleeing and evading liability.	No reversible error; sufficient evidence to submit to jury.
Jurors' notes during deliberations	RCr 9.72 mandatory note-taking should have allowed notes in deliberations.	Note-taking restriction was error but not reversible.	Not reversible; error not palpable; not structural.

Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991) (directed verdict standard; weigh evidence for jury credibility)
Pate v. Commonwealth, 134 S.W.3d 593 (Ky.2004) (preservation requirements for directed verdicts)
Rice v. Commonwealth, 199 S.W.3d 732 (Ky.2006) (co-defendant objections insufficient for appeal)
Barnett v. Commonwealth, 317 S.W.3d 49 (Ky.2010) (RCr 9.72 mandatory; reversal not automatic)
Crain v. Commonwealth, 257 S.W.3d 924 (Ky.2008) (substantial risk element; evidence sufficiency)
Lawson v. Commonwealth, 85 S.W.3d 571 (Ky.2002) (substantial risk from high-speed evasion)
Travis v. Commonwealth, 327 S.W.3d 456 (Ky.2010) (unanimity issues; harmless error considerations)
Neder v. United States, 527 U.S. 1 (U.S.1989) (structural errors; very limited class)
Rose v. Clark, 478 U.S. 570 (U.S.1986) (fundamental fairness constraints)
Gonzalez-Lopez, 548 U.S. 140 (U.S.2006) (structural error considerations)
United States v. Marcus, 560 U.S. 258 (U.S.2010) (structural error discussion in context of note-taking)