Jan08 Advo.pmd - e-archives Home

THE ADVOCATE Volume 30, No. 1 January 2008
And in Scott v. Commonwealth, 2006 WL 3751391 (Ky.2006), unpublished, the prosecutor
again argued that the jury should “send a message.” The court said that, “...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.”
Compare those two cases with Barnes, supra, in which in court sustained 29 objections by
defense counsel during the prosecutor’s closing argument, and admonished the jury 11 times.
Nevertheless, the conviction was still reversed because the court refused to sustain an objection
to the prosecutor’s statement to the jury that finding the defendant innocent would be the only
crime greater than the murder itself.
What if the trial court forbids attorneys to object during closing arguments? “We cannot hold
trial counsel strictly accountable to the rules regarding making contemporaneous objections
when the record suggests counsel was repeatedly denied a reasonable opportunity to make a
record.” Alexander v. Commonwealth, 864 S.W.2d 909, 915 (Ky.1993). Think about starting the
trial with a detailed motion in limine regarding improper argument during closing, and if possible,
offer to make avowals of the grounds for your objections.
REQUEST RELIEF! – If an objection is overruled, the contemporaneous objection (RCr 9.22)
preserves the issue on appeal. On the other hand, if an objection is sustained, there is no
further issue preserved for appeal unless the defendant also then requests a mistrial or
admonition which is then denied. “An admonition is appropriate only if the objection is
sustained.” Barnes, supra, at 568. “In the absence of a request for further relief, it must be
assumed that appellant was satisfied with the relief granted, and he cannot now be heard to
complain.” Baker v. Commonwealth, 973 S.W.2d 54, 56 (Ky.1998). “[M]erely voicing an
objection, without a request for a mistrial or at least an admonition, is not sufficient to establish
error once the objection is sustained.” Hayes v. Commonwealth, 698 S.W.2d 827, 829 (Ky.1985).
So request further relief!
The exact same situation obtains when a trial court offers an admonition and the defendant
declines to accept it. If you request a mistrial and the court offers an admonition, accept the
admonition if you want to, but make clear you are not waiving your motion for a mistrial.
Practice Tip: Being Explicit. Lest you think that you have already been told enough times to
be clear and explicit about your position while speaking on the record, please note that, in some
very recent decisions, remarks which would normally be understood as nothing more than
ordinary politeness and civility have been interpreted on appellate review as waivers of some
very important issues. In Alley v. Commonwealth, 160 S.W.3d 736 (Ky.2005), defense counsel
spent a good deal of time arguing that his client should not be forcibly medicated to gain
competency to stand trial. The trial court refused to rule on the issue, saying there was no
proper motion before the court on the matter. Defense counsel’s response was “That’s fine.
We understand.” The appellate court ruled that defense counsel had, by saying that, waived
the issue he had fought over so long and hard. In Lattner v. Commonwealth, 2006 WL 2924653,
(Ky.App.2006), unpublished, the defendant had testified that he was against the use of drugs.
The prosecutor wanted to impeach the defendant with a former conviction for drug possession.
Defense counsel objected. The trial judge responded by saying that he thought the
defendant had opened the door to the impeachment by setting himself up as a “innocent lamb
type guy.” Defense counsel’s response was, “That’s fine.” Even though the appellate court
explicitly acknowledged that defense counsel had objected to the intended impeachment, it
ruled that defense counsel had waived the issue on appeal by then saying “That’s fine.” So, be
polite, but be explicit.
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