Jan08 Advo.pmd - e-archives Home

THE ADVOCATE Volume 30, No.1 January 2008
because the court has heard no additional evidence. Scruggs v. Commonwealth, 566 S.W.2d 405
(Ky.1978). If the court hears any more evidence after the close of the Commonwealth’s case-inchief,
then the motion for directed verdict must be renewed, whether the presentation of additional
evidence ends with the defense case or with the Commonwealth’s rebuttal evidence. Baker, supra.
“In effect, therefore, a motion for directed verdict made only at the close of one party’s evidence
loses any significance once it is denied and the other party, by producing further evidence, chooses
not to stand on it.” Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky.1997).
Instructions – Sometimes, in order to preserve your motions for directed verdict, you have to
object to the giving of instructions also. When this is necessary depends upon whether your client
may be guilty of a lesser included offense.
Kentucky courts have clearly interpreted a motion for directed verdict as a motion for acquittal on
everything, i.e., on all counts. In Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky.1978), the
court said that a directed verdict is only appropriate, “when the defendant is entitled to complete
acquittal i.e. when, looking at the evidence as a whole, it would be clearly unreasonable for a jury
to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment
or of any lesser included offenses.” Therefore, when your defense is that the evidence is insufficient
to sustain a guilty verdict on any charge, your motions for directed verdict are sufficient to preserve
the claim on appeal. See Combs v. Commonwealth, 198 S.W.3d 574 (Ky.2006).
On the other hand, when the evidence may support a finding of guilt on a lesser included offense,
then the court cannot properly grant a directed verdict (i.e., a complete acquittal). The proper
procedure is then to object to the giving of instructions on the greater offense. This will preserve
the issue of the sufficiency of the evidence as to any particular charge. “The proper procedure for
challenging the sufficiency of evidence on one specific count is an objection to the giving of an
instruction on that charge.” Seay v. Commonwealth, 609 S.W.2d 128, 130 (Ky.1980). “[T]hat rule
applies...when there are two or more charges and the evidence is sufficient to support one or more,
but not all, of the charges. In that event, the allegation of error can only be preserved by objecting
to the instruction on the charge that is claimed to be insufficiently supported by the evidence.”
Miller v. Commonwealth, 77 S.W.3d 566, 577 (Ky.2002), Campbell v. Commonwealth, 564 S.W.2d
528, 530-31 (Ky.1978), Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky.1977). It then becomes
necessary to object to giving instructions on the greater charge and to tender to the court instructions
on the lesser offense which may be supported by the evidence. Kimbrough v. Commonwealth, 550
S.W.2d 525 (Ky.1977), Campbell v. Commonwealth, 564 S.W.2d 528 (Ky.1978), Baker v.
Commonwealth, 973 S.W.2d 54 (Ky.1998), Miller v. Commonwealth, 77 S.W.3d 566 (Ky.2002),
Combs v. Commonwealth, 198 S.W.3d 574 (Ky.2006).
Guilty Verdict - It is never proper for a trial court to direct a verdict of guilty when there is a plea of
not guilty, despite the fact that evidence of the defendant’s guilt may be both convincing and
entirely uncontradicted. Taylor v. Commonwealth, 125 S.W.3d 216 (Ky.2004).
VI. TO THE JURY
INSTRUCTIONS
Legal Standard – A court is required to give instructions applicable to every state of the case
covered by the indictment and deducible from or supported to any extent by testimony.
Commonwealth v. Collins, 821 S.W.2d 488 (Ky.1991), Gabow v. Commonwealth, 34 S.W.3d 63
(Ky.2000), overruled on other grounds. Jury instructions must be complete, and the defendant has
a right to have every issue of fact raised by the evidence and material to his defense submitted to
the jury on proper instructions. Hudson v. Commonwealth, 202 S.W.3d 17 (Ky.2006). Although a
trial judge has a duty to prepare and give instructions on the whole law of the case, including any
lesser included offenses supported by the evidence, that duty does not include instructing on
theories without any evidentiary foundation. Houston v. Commonwealth, 975 S.W.2d 925 (Ky.1998).
See also RCr 9.54(1).
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