West v. Commonwealth

STEPHENS, Chief Justice,

dissenting.

I respectfully dissent.

The real issue in this case is whether, in the absence of the highly inflammatory and highly improper remarks of the Commonwealth Attorney, the evidence would have brought about a verdict of guilty. Stated another way, was the misconduct of the prosecutor prejudicial?

In view of the purely circumstantial nature of the Commonwealth’s case, and the relative weakness of the evidence, I have concluded that the conduct of the prosecutor in this case was of such a nature as to merit a reversal of the conviction.

I believe that without the purposeful conduct of the prosecutor, (most of which is *604described in the majority opinion), a different result would have been reached. It is true that the trial court sustained many objections and rendered appropriate admonitions to the jury. However, in my opinion the admonitions could not and did not eliminate or even minimize the impact of the inappropriate, inflammatory, prejudicial, unnecessary, intemperate, vilifying and deceptive statements of the prosecutor. Under these circumstances, I think it is mandatory that we apply RCr 10.26. I would reverse the conviction. Justice and the reputation of our criminal justice system demand this action. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988).

COMBS, J., joins this dissent.