Dissenting opinion by
Justice KELLER.I agree with the majority that “a trial court has a duty to conduct further inquiry when it has reason to believe that a defendant’s waiver of his right to testify was not knowingly or intelligently made or was somehow wrongfully suppressed.”1 And, as to the case at bar, I agree that Appellant’s trial counsel’s in-court representations suggested that counsel “might be overriding the defendant’s decision to take the stand,”2 and thus demonstrated “exceptional circumstances” under which the trial court should have inquired further into whether Appellant had knowingly and voluntarily waived his right to testify. I dissent from the result reached by the majority, however, because I disagree with the majority’s conclusion that this error mandates reversal and remand for a new trial. Quite simply, I can find no authority to support the view that, in a jurisdiction like Kentucky that applies the general “no inquiry” rule, per se reversible error results whenever a trial court erroneously fails to conduct an on-the-record colloquy (required by “extraordinary circumstances” present in the case) as to whether the defendant knowingly and voluntarily waived his right to testify. In fact, I have not found a single case — not in Appellant’s briefs, not in the majority opinion, and not in my own research — where an appellate court, presented with this issue in this procedural posture, reversed a criminal conviction.
It appears that the majority has taken at face value Appellant’s trial counsel’s statements to the effect that Appellant wanted to testify, but that she would not allow him to do so. Although counsel’s statements certainly could be interpreted literally — i.e., that counsel willfully obstructed her own client’s constitutional right to decide for himself whether to testify and then decided to broadcast her professional misconduct both at a bench conference and again before the jury during closing argument — I find it exceptionally hard to believe that, although both the trial judge and the Assistant Commonwealth Attorney were present, neither’s interest was at all piqued by these bold declarations. This suggests to me that, in context, trial counsel’s statements may have been intended, and understood, other than literally. Specifically, I recognize the possibility that counsel’s “I’m not going to let him testify” declaration may have been merely an extremely poor choice of words *204to communicate in shorthand that counsel had discussed Appellant’s rights with him, and that, although Appellant had initially wanted to “tell his side of the story,” Appellant was persuaded, and himself decided, not to testify after counsel discussed with him the costs and benefits of taking the stand.3 If this is the case, and despite counsel’s representations, Appellant actually did knowingly and voluntarily elect not to testify, then the only thing that Appellant was “deprived of’ is the colloquy in which Appellant would have confirmed his waiver before the trial court. If so, the majority grants Appellant a windfall of epic proportions when it reverses his conviction and grants him a new trial.
Accordingly, instead of reversing the judgment of the Fayette Circuit Court and remanding this indictment for a new trial, I would vacate the judgment, and remand this case to the trial court for an evidentia-ry hearing to determine whether Appellant knowingly and voluntarily waived his right to testify at his prior trial. Following this hearing, if the trial court either determines that Appellant did not knowingly and voluntarily waive his right to testify or is, for any reason, unable to make a determination, Appellant should receive a new trial. However, if the trial court finds that Appellant knowingly and voluntarily waived his right to testify, it should reinstate the judgment, and Appellant should be permitted to seek appellate review of the trial court’s finding.
I agree with both the majority’s conclusion that the trial court’s jury instructions as to First-Degree Robbery were erroneous and its statement that the allegation of error as to those instructions, which Appellant did not preserve by contemporaneous objection and which is not a palpable error that would justify relief under RCr 10.26, warrants discussion “merely because the issue may appear upon remand.”4 For the record, I disagree with the majority opinion’s suggestion that the “better instruction defining complicity” it proposes is a panacea for this error. I have argued on prior occasions that “definitional instructions” that duplicate or replace other instructions containing the substantive elements of criminal offenses not only confuse juries5 but also may create the risk of a non-unanimous verdict if the trial court does not tailor its “definition” to the proof at trial.6 Accordingly, I would suggest that, instead of utilizing a different, standalone complicity definition in its instructions, the trial court could cure the error by correctly incorporating KRS 502.020(1) “complicity to the act” culpability within its substantive instruction as to First-Degree Robbery.7
. Majority Opinion, 107 S.W.3d 197, 199 (2003).
. United. States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996), citing United States v. Pennycooke, 65 F.3d 9, 12-13 (3rd Cir.1995).
. I observe that Appellant's First-Degree Robbery conviction was enhanced as a result of his First-Degree Persistent Felony Offender (PFO) status, so one (1) possible opportunity cost of taking the stand and testifying would be the probability of impeachment as a convicted felon. See KRE 609.
. Majority Opinion, supra note 1 at 200.
. Tharp v. Commonwealth, Ky., 40 S.W.3d 356, 369-370 (2001) (Keller, J., concurring).
. Commonwealth v. Whitmore, Ky., 92 S.W.3d 76, 83 (2003) (Keller, J., concurring).
. Ray v. Commonwealth, Ky., 550 S.W.2d 482, 484-5 (1977).