dissenting.
I respectfully dissent from the majority opinion because the alleged misstatement of the law by the prosecutor during closing argument did not amount to reversible error.
Considering the closing argument of the prosecutor in its entirety, there is no reason to reverse the conviction of Ruppee. At most the complained of remark appears twice. Closing argument is just that. It is argument. Review of the two comments by the prosecutor when taken in context does not give even the appearance of being misleading. The prosecutor was arguing parole eligibility guidelines regarding first-degree persistent felony offenders. He told the jury that the underlying sentence did not matter and that the defendant would serve seven and a half years even if convicted of PFO in the first degree and given a life sentence. He was obviously trying to impress the jury with the fact that after serving ten years, the defendant could be freed from prison even if the jury gave him life, pursuant to the terms of KRS 532.080(7).
The defendant had admitted to serving two and a half years already for the crime because it had been previously overturned by this Court. Two and a half from ten still equals seven and one-half which is the initial time for parole eligibility as a practical matter.
At the combined sentencing/persistent felony offender part of the bifurcated trial, evidence was presented for a parole officer that Ruppee had been convicted of 8 prior felonies. Certified copies of only two judgments were introduced to prove the requirements of the PFO charge.
A review of the record indicates that this case was prosecuted and defended in a vigorous and professional manner by both counsel. Clearly the lawyers and the trial judge fully understood the circumstances. There was no effort by the defense to correct the situation as now alleged on appeal because there was nothing to correct. The jury was not misled. There was no request of the trial judge to clarify the law because it was clear to all who were present in the court room. The assertion that a misstatement of the law regarding parole eligibility was the basis of the defense objection does not appear in the record and it arises for the first time on appeal. RCr 9.22 provides in part that when a ruling is sought the objecter should make known to the trial judge the action desired. Specific grounds must be given for an objection when requested by the trial judge.
The basis of any objection by the defendant and any ruling on that objection are not included in this record. There is no request for an admonition by the defendant in the record.
A case should not be reversed on the basis of isolated remarks by the prosecutor in closing argument. The statements must be taken in context so as to determine if there was any unfairness in’ the trial. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). There was ample evidence of guilt and this trial was fundamentally fair. I would affirm the conviction in all respects.
STEPHENSON, J., joins in this dissent.