IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!' PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE)COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 24, 2015 NOT TO BE PUBLISHED
S5uprrittr C:ottrf 7,firttfutitv 2014-SC-000546-MR
BASS WEBB APPELLANT
ON APPEAL FROM BOURBON CIRCUIT COURT V. HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 09-CR-00109
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Bass Webb appeals as a matter of right from a Judgment of the Bourbon
Circuit Court sentencing him to thirty-seven years in prison for two counts of
attempted murder, and for being a Persistent Felony Offender ("PFO") in the
first degree. Ky. Const. § 110(2)(b). On appeal, Webb contends that the
Commonwealth engaged in prosecutorial misconduct during its closing
argument, rendering his sentencing proceedings fundamentally unfair. For
reasons explained fully herein, we now affirm the sentence of the Bourbon
Circuit Court.
RELEVANT FACTS
Bass Webb was indicted by a Bourbon County grand jury on two counts
of attempted murder and first-degree PFO for striking two men with his car in
the parking lot of the Bourbon County Detention Center. Webb was convicted
and sentenced to fifty years in prison. On appeal in 2012, this Court held that the Commonwealth violated the provisions of KRS 532.055 when it revealed
improper information about Webb's past crimes and prior victims during his
sentencing phase. Webb v. Commonwealth, 387 S.W.3d 319, 329 (Ky. 2012).
We affirmed Webb's convictions, but vacated his sentence and remanded for a
new sentencing phase.
Webb's resentencing commenced on March 17, 2014. The
Commonwealth played taped testimony of various individuals who witnessed
Webb ram his vehicle into the two victims, pinning them against a wall. After
deliberating, the jury recommended that Webb be sentenced to a total of thirty-
seven years in prison, and the trial court sentenced Webb accordingly. This
appeal followed.
ANALYSIS
The single issue Webb raises on appeal concerns the Commonwealth's
closing argument during his 2014 sentencing proceeding. Webb maintains
that two comments made by the prosecutor constituted flagrant prosecutorial
misconduct which rendered the proceeding fundamentally unfair. He urges
this Court to reverse his sentence and remand the matter to the trial court for
another new sentencing phase. Upon review, we conclude that the statements
made during the Commonwealth's closing argument fell well within the range
of permissible closing argument rhetoric, and do not rise to the level of
prosecutorial misconduct.
During the Commonwealth's closing argument, the prosecutor remarked
that on the day of the vehicular assault, Webb felt "worthless, [was] thinking he
2 wanted to die, [was] having a bad day of sorts." On appeal, Webb asserts that
the reference to "having a bad day" unfairly denigrated Webb's mental state in
such a way that the jury was unable to consider any mitigation evidence. He
also challenges a statement made by the prosecutor concerning the jury's role
in sentencing, specifically: "How long he's going to stay there, that's what you
all decide." Webb now alleges that these remarks constituted prosecutorial
misconduct for which reversal is the only remedy.
The issue is unpreserved, and Webb requests palpable error review
pursuant RCr 10.26. 1 When a party raises an unpreserved allegation of
prosecutorial misconduct, we will reverse only where flagrant misconduct of
the prosecutor rendered the trial fundamentally unfair. Duncan v.
Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010). To that end, this Court must
conclude that in light of all of the proof, the prosecutor's conduct was not
harmless, and that the defect could not have been cured by an admonition. Id.
Therefore, we must assess "the overall fairness of the entire trial" in order to
reach our determination as to prosecutorial misconduct. Noakes v.
Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011) (internal citations omitted).
Having reviewed the record, we agree that the Commonwealth did not
engage in prosecutorial misconduct culminating in palpable error. The
I "A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." RCr 10.26; see also Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013).
3 prosecutor's comment that Webb was "having a bad day of sorts" in no way
undermined the fundamental fairness of the sentencing proceeding. In fact, it
is difficult to perceive how the comment would have prevented the jury from
considering mitigation evidence in the way that Webb now insists it did. The
statement reflected Webb's suicidal state of mind on the day of the attack—a
fact that was further supported by evidence of Webb's comments to arresting
officers that he wished to die. In the context of the entire statement, the
remark that Webb was "having a bad day" was not so flippant or derisive as to
constitute palpable misconduct. In fact, we have declined to find misconduct
where the prosecutor's comments or tactics have been arguably much worse.
See Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006) (prosecutor's
statement regarding the defendant's failure to testify was not improper); Brewer
v. Commonwealth, 206 S.W.3d 313 (Ky. 2006) (no prosecutorial misconduct
where prosecutor urged the jury to "send a message"); Vincent v.
Commonwealth, 281 S.W.3d 785 (Ky. 2009) (prosecutor's personal impression
of defendant's guilt was not improper).
Even if we assume that the jury was somehow affected by this offhand
remark, the Commonwealth was entitled to introduce evidence aimed at
rebutting mitigation evidence offered by the defense. Ordway v.
Commonwealth, 391 S.W.3d 762, 786 (Ky. 2013). Furthermore, counsel is
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!' PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE)COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 24, 2015 NOT TO BE PUBLISHED
S5uprrittr C:ottrf 7,firttfutitv 2014-SC-000546-MR
BASS WEBB APPELLANT
ON APPEAL FROM BOURBON CIRCUIT COURT V. HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 09-CR-00109
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Bass Webb appeals as a matter of right from a Judgment of the Bourbon
Circuit Court sentencing him to thirty-seven years in prison for two counts of
attempted murder, and for being a Persistent Felony Offender ("PFO") in the
first degree. Ky. Const. § 110(2)(b). On appeal, Webb contends that the
Commonwealth engaged in prosecutorial misconduct during its closing
argument, rendering his sentencing proceedings fundamentally unfair. For
reasons explained fully herein, we now affirm the sentence of the Bourbon
Circuit Court.
RELEVANT FACTS
Bass Webb was indicted by a Bourbon County grand jury on two counts
of attempted murder and first-degree PFO for striking two men with his car in
the parking lot of the Bourbon County Detention Center. Webb was convicted
and sentenced to fifty years in prison. On appeal in 2012, this Court held that the Commonwealth violated the provisions of KRS 532.055 when it revealed
improper information about Webb's past crimes and prior victims during his
sentencing phase. Webb v. Commonwealth, 387 S.W.3d 319, 329 (Ky. 2012).
We affirmed Webb's convictions, but vacated his sentence and remanded for a
new sentencing phase.
Webb's resentencing commenced on March 17, 2014. The
Commonwealth played taped testimony of various individuals who witnessed
Webb ram his vehicle into the two victims, pinning them against a wall. After
deliberating, the jury recommended that Webb be sentenced to a total of thirty-
seven years in prison, and the trial court sentenced Webb accordingly. This
appeal followed.
ANALYSIS
The single issue Webb raises on appeal concerns the Commonwealth's
closing argument during his 2014 sentencing proceeding. Webb maintains
that two comments made by the prosecutor constituted flagrant prosecutorial
misconduct which rendered the proceeding fundamentally unfair. He urges
this Court to reverse his sentence and remand the matter to the trial court for
another new sentencing phase. Upon review, we conclude that the statements
made during the Commonwealth's closing argument fell well within the range
of permissible closing argument rhetoric, and do not rise to the level of
prosecutorial misconduct.
During the Commonwealth's closing argument, the prosecutor remarked
that on the day of the vehicular assault, Webb felt "worthless, [was] thinking he
2 wanted to die, [was] having a bad day of sorts." On appeal, Webb asserts that
the reference to "having a bad day" unfairly denigrated Webb's mental state in
such a way that the jury was unable to consider any mitigation evidence. He
also challenges a statement made by the prosecutor concerning the jury's role
in sentencing, specifically: "How long he's going to stay there, that's what you
all decide." Webb now alleges that these remarks constituted prosecutorial
misconduct for which reversal is the only remedy.
The issue is unpreserved, and Webb requests palpable error review
pursuant RCr 10.26. 1 When a party raises an unpreserved allegation of
prosecutorial misconduct, we will reverse only where flagrant misconduct of
the prosecutor rendered the trial fundamentally unfair. Duncan v.
Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010). To that end, this Court must
conclude that in light of all of the proof, the prosecutor's conduct was not
harmless, and that the defect could not have been cured by an admonition. Id.
Therefore, we must assess "the overall fairness of the entire trial" in order to
reach our determination as to prosecutorial misconduct. Noakes v.
Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011) (internal citations omitted).
Having reviewed the record, we agree that the Commonwealth did not
engage in prosecutorial misconduct culminating in palpable error. The
I "A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." RCr 10.26; see also Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013).
3 prosecutor's comment that Webb was "having a bad day of sorts" in no way
undermined the fundamental fairness of the sentencing proceeding. In fact, it
is difficult to perceive how the comment would have prevented the jury from
considering mitigation evidence in the way that Webb now insists it did. The
statement reflected Webb's suicidal state of mind on the day of the attack—a
fact that was further supported by evidence of Webb's comments to arresting
officers that he wished to die. In the context of the entire statement, the
remark that Webb was "having a bad day" was not so flippant or derisive as to
constitute palpable misconduct. In fact, we have declined to find misconduct
where the prosecutor's comments or tactics have been arguably much worse.
See Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006) (prosecutor's
statement regarding the defendant's failure to testify was not improper); Brewer
v. Commonwealth, 206 S.W.3d 313 (Ky. 2006) (no prosecutorial misconduct
where prosecutor urged the jury to "send a message"); Vincent v.
Commonwealth, 281 S.W.3d 785 (Ky. 2009) (prosecutor's personal impression
of defendant's guilt was not improper).
Even if we assume that the jury was somehow affected by this offhand
remark, the Commonwealth was entitled to introduce evidence aimed at
rebutting mitigation evidence offered by the defense. Ordway v.
Commonwealth, 391 S.W.3d 762, 786 (Ky. 2013). Furthermore, counsel is
afforded "wide latitude" in making closing statements. Brewer v.
Commonwealth, 206 S.W.3d 343 (Ky. 2006). The comment was neither facially
4 inflammatory, nor was it clearly calculated to denigrate Webb's mental state
and thus improperly influence the jury.
As for the second issue on appeal, the prosecutor's statement that it was
up to the jury to "decide" the length of Webb's sentence, that statement clearly
did not rise to the level of prosecutorial misconduct. Despite Webb's argument
to the contrary, the remark did not constitute an improper comment
concerning parole eligibility—rather, the prosecutor succinctly recounted the
duty of the jury to determine Webb's sentence. Not only was the "you all
decide" comment an accurate statement of the law, 2 the comment simply did
not rise to the level of flagrant overreaching that can be the basis for reversal
by this Court on prosecutorial misconduct grounds. See Duncan, 322 S.W.3d
at 88 (a gross mischaracterization of DNA evidence constituted prosecutorial
misconduct resulting in palpable error). As it were, Webb's 2014 sentence was
thirteen years less than his original sentence. Having already heard truth-in-
sentencing evidence, including parole eligibility guidelines, it is simply
unreasonable to presume that the jury in this new sentencing phase was
improperly influenced by the prosecutor's comment. As Webb has utterly failed
to explain how these brief and innocuous statements rendered the proceeding
fundamentally unfair, we agree that he is not entitled to the relief he requests.
2 This Court has repeatedly held that it is improper to diminish the jury's responsibility by using the phrase "recommend" when instructing the jury to fix a defendant's sentence. See Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985); Tamme v. Commonwealth, 759 S.W.2d 51 (Ky. 1988); Grooms v. Commonwealth, 756 S.W.2d 131 (Ky. 1988).
5 CONCLUSION
For the foregoing reasons, we affirm the sentence of the Bourbon Circuit
Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Julia Karol Pearson Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky
David Wayne Barr Assistant Attorney General Office of the Attorney General