dissenting.
I must respectfully dissent from the majority opinion because I do not believe it was reversible error when the trial judge refused to give the tendered instructions relative to the no inference to be drawn from the defendant’s failure to testify at his persistent felony offender trial. As recently as October of 1982, this Court denied discretionary review of the case of Finney v. Commonwealth, Ky.App., 638 S.W.2d 709 (1982), in which the Court of Appeals held that there was no requirement to give a no inference of guilt instruction in a PFO trial because the defendant is not being tried on a substantive offense, but rather on a charge fixing his status as a persistent felony offender.
If we are to adopt the rule urged by the majority, then, we should face the impact of Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), on the Kentucky practice.
Here the majority continues to refer to the PFO proceeding as a status situation, although Bullington, supra, indicates that an enhancement hearing, when the prosecution is required to prove additional facts to justify a particular sentence, is the same as the preceding guilt-phase of the trial. I see no reason to depart from the decision enunciated in Finney. There was no prejudice to the defendant.
STEPHENS, C.J., joins in this dissent.