         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
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                                                 RENDERED: FEBRUARY 18, 2016
                                                        NOT TO BE PUBLISHED

                  ,Suprrittr Conti of 7f,fi
                                   2014-SC-000568-MR


                                                         DATE-3-1"0
DANNY JOE KEITH                                                          APPELLANT


                 ON APPEAL FROM MUHLENBERG CIRCUIT COURT
V.                    HONORABLE BRIAN WIGGINS, JUDGE
                              NO. 14-CR-00155


COMMONWEALTH OF KENTUCKY                                                  APPELLEE




                      MEMORANDUM OPINION OF THE COURT

     AFFIRMING, IN PART, AND REVERSING, IN PART, AND REMANDING

                A circuit court jury convicted Danny Joe Keith of first-degree

promoting contraband and second-degree trafficking of a controlled substance

and recommended a five-year prison sentence for each conviction. The same

jury then convicted Keith of being a first-degree persistent-felony offender (PFO)

and recommended an enhanced sentence of ten years' imprisonment for each

of the underlying convictions to run consecutively for an effective total sentence

of twenty years' imprisonment. The trial court entered judgment accordingly.

      Keith appeals to this Court as a matter of right,' contending that the trial

court improperly instructed the jury on the first-degree promoting contraband

charge, resulting in his conviction by potentially less than a unanimous jury.

      1   Ky.Const. § 110(2)(b).
The Commonwealth concedes that this was error. So we reverse that portion of

the judgment and remand the case to the trial court for further proceedings.

      Keith does not challenge on appeal his second-degree trafficking

conviction, and we find no error in the Commonwealth's closing argument

during the PFO and penalty phase of the trial, so we affirm the remainder of

the judgment.


                 I. FACTUAL AND PROCEDURAL BACKGROUND.

      Keith has a long history of substance abuse that has placed him in

prison for most of his adult life. At age 19, he was convicted of driving on a

suspended license after his third DUI. At age 23, he was sentenced to 40

years' imprisonment for wanton vehicular murder. He had served 18 years of

that sentence and was set to meet the parole board when the events leading up

to this case occurred inside the correctional facility.

      During his inspection rounds one night, the guard noticed Keith's

cellmate keeping watch from their cell door. This aroused the guard's

suspicion, so he approached the cell to investigate. He saw Keith standing at

his bunk fiddling with an object he described as a TV converter box, which

Keith claimed was short circuiting. Based on Keith and the cellmate's

behavior, the guard suspected something else was going on. So the guard

popped open the converter box and discovered marijuana and six pills, which

were later identified as Alprazolam. He handcuffed Keith and the cellmate and

segregated them while he completed his investigation.



                                          2
       Following an inventory search of Keith's locker, the guard found a

homemade jewelry box that appeared to have a false bottom. Eventually,

guards opened the box and discovered a list of nicknames and numbers, which

one of the guards identified as a "debt slip"—a common method inmates

employ to disguise their identities. The box also contained a quantity of orange

strips, later identified as Suboxone.

       Keith was charged and convicted of first-degree promoting contraband

from the contents of the converter box, and second-degree trafficking in a

controlled substance based on the contents of the jewelry box.


                                     II. ANALYSIS.
   A. Keith was Denied a Unanimous Jury Verdict.

       Keith contends that the trial court erred in its jury instruction for first-

degree promoting contraband. The instruction told the jury to convict Keith if

it found him guilty of possessing either marijuana or Alprazolam. Use of the

disjunctive "or" in the instruction did not require the jury to decide

unanimously which particular drug he was guilty of possessing.

      This issue was not preserved for review at trial, but Keith requests review

for palpable error. 2 To be sure, in Kentucky, the right to a unanimous verdict

is a cornerstone notion of due process of law, and a violation of this principle




      2 See Kentucky Rules of Criminal Procedure (RCr) 10.26 ("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
preserved for review, and appropriate relief may be granted upon a determination that
manifest injustice has resulted from the error.").

                                          3
requires reversal regardless of preservation. 3 Because this error offends Keith's

right to due process of law and a fair trial, and because the Commonwealth

concedes error on this issue, we reverse his conviction for first-degree

promoting contraband.

       This Court has clearly established that Section 7 of the Kentucky

Constitution requires a unanimous verdict by a twelve-member jury in all

criminal cases. 4 Kentucky departs from Supreme Court case law and offers

greater protections for criminal defendants than the requirements of the Sixth

and Fourteenth Amendments to the federal Constitution. 5 Keith's claim

essentially rests on whether the instruction allowing the jury to convict him if

they found him in possession of either marijuana or Alprazolam violates the

unanimity requirement that our Constitution extends above what the Supreme

Court considers constitutionally sufficient.

       In Johnson v. Commonwealth, we held that duplicitous counts "whether

appearing in an indictment or jury instructions, [present] multiple

constitutional problems, including that the jury verdict is not unanimous." 6

                                                                                     Thesprinclaywt"equforchnisajytrucof

single count that covers two different instances of the crime.? Likewise, in

Martin v. Commonwealth, we held that a unanimous-verdict violation occurs

      3   See Kingery v. Commonwealth, 396 S.W.3d 824, 831-32 (Ky. 2013).
      4   See id. See also Wells v. Commonwealth,   561 S.W.2d 85, 87 (Ky. 1978).
       5 See Apodaca v. Oregon, 406 U.S. 404 (1972) (the federal Constitution only
requires a majority verdict to sustain a conviction).
      6   405 S.W.3d 439, 454 (Ky. 2013).
      7   Id.

                                            4
when a single jury instruction may be satisfied by multiple criminal acts by the

defendan.t. 8 This Court has taken a strong position on the unanimity

requirement, and we see no reason to depart from that in this case. Indeed, the

Commonwealth concedes that the verdict below does not comport to the

standards we outlined in Martin, and the conviction should be reversed on

those grounds. The Commonwealth asks us to render our opinion consistent

with Martin to make our unanimous-verdict rule even clearer for future

litigation. The only remaining question is whether we agree that this is in fact

a Martin issue.

      To us, the first-degree promoting-contraband instruction is clearly

analogous to the single-instruction-satisfied-by-multiple-acts scenario we held

unconstitutional in Martin. This is underscored by our recent requirement that

a defendant's right to a unanimous verdict requires the trial court to use jury

instructions that direct the jury to consider a specific, uniquely identifiable

event. 9 Simply put, Keith is entitled to an instruction requiring jurors to

definitively state which drug he was guilty of possessing, and he was denied

that instruction below.

      Because this clear violation of our state constitution amounts to palpable

error, we reverse Keith's conviction of this charge and remand to the Circuit

Court for further proceedings consistent, with this opinion.



       8 456 S.W.3d 1 (Ky. 2015). See also Ruiz v. Commonwealth, 471 S.W.3d 675
(Ky. 2015).
      9   Ruiz, 471 S.W.3d at 678.

                                         5
       Keith does not dispute his conviction on the second count—second-

degree trafficking of a controlled substance. So this ruling does not impact the

jury's conviction for this offense. But Keith's other claim of error in this case

alleges prosecutorial misconduct in the closing argument of the combined PFO

and sentencing phase of his trial. Because we affirm his trafficking conviction,

we must review the alleged error in sentencing—but only in relation to his

sentence for trafficking and PFO offenses.

   B. Keith was not Entitled to a Mistrial Because of the Commonwealth's
      Statements During the Sentencing Phase of his Trial.

       Keith's second claim of error focuses on the Commonwealth's Attorney's

characterization of Kentucky's PFO law during closingarguments of the

combined PFO and sentencing phase of his trial. More specifically, Keith

primarily takes issue with the Commonwealth's comparison of the PFO law to a

"three-strike" rule. The Commonwealth's exact language in closing arguments

is as follows:

      I told you earlier Kentucky does not have a "three strike." But this
      is truly a three strike situation for an individual of the conviction
      felonies he had. I further say you ought to consider the fact this
      isn't even someone that served his time, got out and... then
      committed another offense. He hasn't even got out of the
      penitentiary.

Keith's ensuing objection argued that the "three strikes" analogy "effectively

informed the jury that [Keith] deserved more punishment than the 20 years

Kentucky laws allows" and that the Commonwealth's characterization

"exceeded a reasonable argument." The trial court overruled his objection,




                                         6
denied a defense motion for a mistrial, and gave the jury no admonition. This

appeal followed.

      We typically only reverse for prosecutorial misconduct "if the [conduct]

was so improper, prejudicial, and egregious as to have undermined the overall

fairness of the proceedings." 10 There are two ways a criminal defendant may

succeed should we identify the statement during closing arguments as error.

First, if the misconduct is flagrant, a defendant is entitled to reversal." The

second way requires satisfaction of each of the following: (1) that proof of the

defendant's guilt is not overwhelming; (2) defense counsel objected; and (3) the

trial court failed to cure the error with sufficient admonishment. 12

      In evaluating Keith's claim, we must consider the argument as a whole,

while keeping mind that we afford parties "wide latitude" in making closing

arguments. 13 With this standard firmly in place, the Commonwealth's

characterization of the Kentucky PFO law was not so prejudicial to mandate

setting aside his ten-year sentence.

      Keith primarily contends that the alleged error in the Commonwealth's

argument is that it created an inference for the jury that Keith's maximum

sentence was not severe enough. This, if true, could perhaps be an inference




      10   Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
      11   See Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002).
      12   Id.
      13
      Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009) (quoting Young v.
Commonwealth, 25 S.W.3d 66, 74-75 (Ky. 2000)).

                                          7
beyond the wide latitude we allow attorneys in making closing arguments. 14

                                                                                   Thisclamupoedybstrhfac ejuy,dring

deliberations, asked if it could sentence Keith to 20 years for each count, as

opposed to the 20-year maximum sentence for PFO I. But ultimately, the

Commonwealth's comparison, while perhaps inartful, did not render the

penalty phase of Keith's trial fundamentally unfair.

       The Commonwealth's Attorney is certainly free to recommend a sentence

within the parameters of Kentucky law. Instead of an attempt to suggest Keith

deserves a penalty above the statutory maximum, we view the characterization

more fittingly as a response to Keith's counsel's plea for a lighter sentence

during his own argument. The Commonwealth here seems to simply be

rebutting Keith's own appeal to the jury's sympathy by highlighting the

importance of a strong sentence for persistent felons. The trial court did not

err in denying Keith's request for a mistrial on the sole basis of this line in the

Commonwealth's closing argument.

      Whatever influence that may be ascribed to the Commonwealth's

analogy, we cannot say the statement was misconduct per se. Though it was

neither a deft nor skillful characterization, to be sure, we are unconvinced that

       14 See Medley v. Commonwealth, 704 S.W.2d 190, 191 (Ky. 1985). This case
prohibited defense counsel from suggesting a "not guilty" verdict on a PFO charge
because it deemed the minimum penalty too severe. Keith contends that the inverse is
true in this case; the Commonwealth may not suggest the statutory-maximum
sentence is too light. While this could potentially be true as an abuse of the state's
prosecutorial authority to inappropriately influence a jury, it ignores the true legal
issue in Medley: juror nullification. Counsel in Medley essentially asked the jury to
ignore the requirements of the law—a far more dubious charge than in the present
case. The Commonwealth here employed imagery to invoke a harsher punishment, no
doubt, but still one within the parameters of the PFO I statute.

                                           8
the statement—taken either in isolation or in the broader context of the

argument as a whole—is such obvious harm to represent a flagrant or

intentional act of prosecutorial misconduct. Even if we were to consider the

analogy as error, evidence of Keith's guilt as a PFO I is overwhelming—he was

in prison when the committed the offense. Within the context of the argument

as a whole, we simply cannot say the comparison between Kentucky's PFO-

sentencing statute and a "three strike" rule exceeded reasonability and

undermined the overall fairness of the sentencing phase of the trial. We must

accordingly affirm Keith's ten-year sentence for second-degree trafficking in a

controlled substance, enhanced as a PFO I.


                              III.      CONCLUSION.
      The lack of the guarantee of unanimity in Keith's possession-charge

conviction rendered his trial on that charge fundamentally unfair, in violation

of Section 7 of the Kentucky Constitution. We reverse his conviction on this

count, but we affirm the remaining conviction for second-degree trafficking a

controlled substance enhanced to a ten-year sentence as a PFO I. The case is

remanded to the trial court for further proceedings consistent with this

opinion.

      All sitting. Minton, C.J., Hughes, Noble, and Venters, JJ., concur.

Cunningham, Keller and Wright, JJ., concur in part and dissent in part, by

separate opinion.

      CUNNINGHAM, J., CONCUR IN PART AND DISSENTING IN PART: I

respectfully concur in part and dissent in part. The jury in this case

                                         9
unanimously agreed that the Appellant was guilty of first degree promoting

contraband. There is no dispute that both marijuana and Alprazolam were

contraband. Both were possessed by the Appellant. He could have been

charged with both but he was only charged with one count. It makes no

difference if six jurors thought he possessed marijuana and six jurors believed

he possessed Alprazolam. All twelve found he possessed one of the two, either

of which is contraband. There is no unanimity problem. And since he was

convicted of only one count of promoting contraband where he could have been

charged with two, there is certainly no "manifest injustice" or palpable error.

Therefore, I dissent from the reversal of that charge.

      Keller and Wright, JJ., join dissent.




                                        10
COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Be shear
Attorney General of Kentucky

Gregory C. Fuchs
Assistant Attorney General




                                11
