             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 TH(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 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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                                                   NOT TO BE PUBLISHED

                 oinprrtur      Gurf of 7/4,reftwfki.
                                              -l
                             2014-SC-000546-MR"          " "


BASS WEBB
                                                   DA'          10 1•545"
                                                                  -




                                                                      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




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