             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY-THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION 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: JUNE 11, 2015
                                                       NOT TO BE PUBLISHED

                   uprrittr Court of rnfuritv
                              2014-SC-000250-MR


KENNETH LESLIE WRIGHT, JR.                                           APPELLANT


                  ON APPEAL FROM HARDIN CIRCUIT COURT
V.                 HONORABLE KELLY M. EASTON, JUDGE
                             NO. 13-CR-00360


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Kenneth Leslie Wright, Jr., was indicted by a Hardin County

Grand Jury on June 13, 2013. Appellant was charged with one count of

robbery in the second degree and being a persistent felony offender in the first

degree ("PF01"). The charges were based on events that occurred on July 3,

2012. On that particular night, Althia Haycraft drove Appellant and his co-

defendant, Mark Barnett, to a parking lot located near a Cash Express store in

Elizabethtown, Kentucky. Haycraft was a former employee of that particular

Cash Express store. Consequently, she knew that every night the closing

manager placed all of the store's cash into a bank deposit bag and then

immediately transported the bag to a nearby bank. Haycraft relayed this

information to Appellant prior to the night in question.

      Once Haycraft parked her vehicle, Appellant and Barnett headed on foot

to the Cash Express store. Around that same time, Ashley Huckabee, the
store's manager, was finishing up her closing duties. Huckabee placed the

deposit bag full of cash in her purse, closed the store, and headed to her

vehicle parked nearby. As she opened her vehicle's door, Appellant or Barnett

pushed her into the vehicle and grabbed her puise with the deposit bag inside.

Appellant and Barnett then ran back to Haycraft's vehicle, making off with over

$3,000 in cash.

      Appellant and Barnett were jointly tried by a Hardin Circuit Court jury in

February of 2014. The jury found Appellant guilty of both charges and

recommended a sentence of ten years imprisonment for the second-degree

robbery charge, which was enhanced to twenty years imprisonment by virtue of

Appellant's PFO 1 conviction. The trial court sentenced Appellant in conformity

with the jury's recommended sentence. Appellant now appeals his conviction

and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky

Constitution.

      Appellant brings forth two arguments in support of his appeal. In both

arguments Appellant claims that he was denied a fair trial in violation of his

due process rights as guaranteed by the Sixth and Fourteenth Amendments to

the United States Constitution and Section Eleven of the Kentucky

Constitution. Appellant's first argument concerns comments the trial judge

made to the jury prior to his formal reading of the instructions. At no point,

however, did Appellant object to the complained of comments. Nonetheless,

Appellant now requests that this Court review the matter for palpable error

pursuant to Kentucky Rules of Criminal Procedure ("RCr") 10.26.


                                        2
      After the trial judge explained to the jury the role of jury foreman and

alternative jurors, he made the following statements:

      Twelve of you are going to go back to the jury room to deliberate.
      The first thing you should do is to select one of you to act as your
      presiding officer . . . . The presiding officer is just to . . . lead
      discussion and make sure that the jury is able to participate in
      deliberations. And, your duty as a jury is to deliberate. Um, other
      words for deliberate are just to consider, to think about. You've
      been instructed throughout this trial that you are not to form any
      opinions until the case is finally submitted to you. Well, that's
      going to happen, when we finish the instructions, it will be finally
      submitted to you. And I realize that you have thoughts about what
      you have heard. But to have formed a final and unshakable
      opinion before considering the input of your fellow jurors would be
      contrary to your oath to follow the law because the law requires
      you to deliberate with each other. Now we often experience these
      days, especially in our political discourse, and elsewhere, that
      consensus is looked down upon, and many opinions are polarized
      with no room for discussion. But, I ask you to think about the
      seriousness of what you are deciding for both sides and to be open
      to the thoughts of others. So, with that in mind, every juror
      should be given the opportunity to state and discuss his or her
      views. Now I used the word opportunity because some people like
      to talk more than others. There's no requirement that you say
      anything as one of the jurors. The point is that you have the
      opportunity to speak if you want to. Also, there is no minimum or
      maximum time for deliberations. How long it takes for you to
      reach an agreement is not the issue. It is the duty actually to
      deliberate as jurors that I'm commenting on at this point. Now you
      must weigh and consider this case without regard to sympathy, to
      any kind of prejudice or passion for or against either side of the
      case. Now those of us outside the jury room have no right to know
      what is said during your deliberations.

      Appellant maintains that the above-quoted comments amounted to an

improper "Allen Charge," thereby rendering his trial fundamentally unfair

because the jury was forced to compromise. An "Allen Charge" is a set of

lengthy instructions trial judges provided to deadlock juries prior to 1992.     See

Allen v. United States, 164 U.S. 492 (1896). The Allen Charge is no longer


                                        3
utilized, as trial judges now recite the five instructions listed in RCr 9.57(1).

That is, if a trial judge believes a deadlocked jury may benefit from further

deliberations, he or she may explain to the jury the desirability of reaching a

verdict as long as the jury is also given the following five instructions: In

continuing deliberations (1) each juror must agree to the verdict; (2) jurors

must consult with one another with a view of reaching an agreement; (3) an

impartial consideration of the evidence with the other jurors must be made; (4)

each juror should reexamine his or her own views and change those views if

convinced they are erroneous; and (5) a juror should not surrender his or her

honest conviction as to the weight or effect of the evidence solely because of the

opinion of other jurors, or for the mere purpose of returning a verdict. RCr

9.57(1)(a)-(e).

       We disagree that the trial judge's comments are tantamount to an RCr

9.57(1) instruction. At most, his comments resemble portions of the

instruction by informing the jury that they were to deliberate, consult with one

another, and maintain an impartial consideration of the evidence. However,

the trial judge's comments did not incorporate the crux of RCr 9.57(1), which is

that in the event a unanimous decision is not made, the jurors should continue

deliberating and reexamine their individual conclusions with a goal of reaching

a verdict.

       Furthermore, even if the trial judge's comments constituted an RCr

9.57(1) instruction, we are unaware of any case law that would require

reversal. In those rare cases wherein an RCr 9.57(1) instruction was given


                                          4
 prematurely, reversal was only warranted when the instruction coerced the

 jury into returning a verdict. For example, in Bell v. Commonwealth, the trial

 judge provided the jury with an RCr 9.57(1) instruction without any indication

 that the jury was deadlocked. 245 S.W.3d 738, 741 (Ky. 2008), overruled on

. other grounds by Harp v. Commonwealth, 266 S.W.3d 813, 821 (Ky. 2008).

 After an hour passed, the trial judge called the foreperson into his chambers

 and inquired into whether further deliberations would be fruitful.     Bell, 245

 S.W.3d at 741. The foreperson answered in the affirmative and was sent back

 to deliberate. Id. at 742. Within twenty minutes, the jury informed the trial

 judge that they had reached a verdict.    Id. This Court concluded that the trial

 judge's "unduly coercive actions" constituted palpable error.    Id.

        Unlike Bell, this Court does not believe that the jury was coerced into

 reaching a verdict. See Abbott v. Commonwealth, 352 S.W.2d 552, 554 (Ky.

  1961) ("ultimate test of coercion is whether the instruction actually forces an

 agreement on a verdict or whether it merely forces deliberation which results in

 an agreement."). The only time the trial judge mentioned reaching a verdict

 was when he explained that "there is no minimum or maximum time for

 deliberations." The trial judge's comments merely encouraged the jury to

 deliberate with one another and to keep an open mind. For these reasons, we

 cannot find that Appellant was deprived of a substantial right or that a

 manifest injustice occurred.

        Appellant's second argument also concerns his constitutional right to a

 fair trial. More specifically, Appellant claims that while providing the jury with


                                          5
its instructions, the trial judge deviated from a verbatim recitation of the actual

instructions and made prejudicial comments. Appellant claims that the trial

judge made the following comments: "Instruction number four authorized

verdict: You shall find the defendant not guilty under these instructions unless

you believe from the evidence beyond a reasonable doubt that he is guilty of,

and there is the charge listed, second-degree robbery. And that is count one."

(Emphasis added). Appellant maintains that the emphasized portion of the

aforementioned comment informed the jury that there were additional charges

pending against him, namely the PFO I charge. Appellant failed to object to the

trial judge's comments, but requests palpable error review.

      This Court has carefully reviewed the recorded portion of the trial

wherein the trial judge read the jury its instructions. We strongly disagree with

Appellant that the trial judge stated "and there is the charge listed, second-

degree robbery. And that is count one." Instead, the trial judge stated the

following: "You shall find the defendant not guilty under these instructions

unless you believe from the evidence beyond a reasonable doubt that he is

guilty of second-degree robbery. Count one." Therefore, the only portion of the

trial judge's statement that was not a verbatim recitation of the instruction was

when he quickly stated "Count one." We find it unlikely that the jury

interpreted that statement to mean that there were more charges. Especially in

light of the fact that the trial judge immediately began reciting the lesser charge

of second degree robbery, it is most likely that the jurors assumed that charge

was count two.


                                         6
         Moreover, even if this Court were to conclude that the trial judge's

statement was error, we cannot find that the error was so prejudicial as to

constitute a manifest injustice. Upon consideration of the entire case and the

amount of evidence supporting Appellant's guilty verdict, there is no

substantial possibility that the result of the trial would have been any different

absent the error. See, e.g., Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky.

1996).

         For the forgoing reasons, the Hardin Circuit Court's judgment is hereby

affirmed.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

V. Gene Lewter
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

David Wayne Barr
Assistant Attorney General




                                          7
